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Constitutional Law2

 

 

Bill of Rights

 

I.  THE DUE PROCESS, EQUAL PROTECTION AND CONTRACT CLAUSES AS LIMITATIONS ON POLICE POWER, EMINENT DOMAIN AND TAXATION

 

              Art. III, Sec. 1.  No person  shall  be deprived of life, liberty, or property  without due  process  of law,  nor shall  any person  be denied  the  equal protection  of the  laws.

        

              Art.  III, Sec. 10.  No law impairing the obligation of contracts shall be passed.  

 

 

Fernando, Constitution of the Philippines, 502-562 (2d ed., 1977.)

 

LIMITATIONS OF SOVEREIGNTY

 

            Inherent in sovereignty, and therefore not even required to be conferred by the  Constitution, are the police, eminent domain, and  taxation powers.  The Bill of Rights,  notably the  due process, equal protection and non-impairment clauses, is a means of limiting the exercise of these powers by imposing on the State the obligation to protect individual rights.  The Bill of Rights is addressed to the State, notably the government, telling  it what it cannot  do to the individu­al.

 

 

            A.  Due process - Procedural and Substantive

 

Civil Procedural Due Process

 

              In civil cases,  the SC laid down  its elements in the case of Banco Espanol Filipino v. Palanca:

 

              a.  Court  with  jurisdiction   over  the  subject matter.

 

              b.  Court with jurisdiction over the party-defendant

 

              c.  Judgement rendered according to law.

 

              d.  Defendant given the oppotunity to be heard (requirement on notice and hearing)

 

Criminal Due Process

 

              In criminal cases, the  elements were laid down in Vera v. People:

 

              a.   Accused is informed why he is proceeded against, and what charge he must answer.

 

              b.  Judgment of  conviction is  based on  evidence that is not tainted by falsity, and after the defendant was heard.

 

                   If  the prosecution  produces the  conviction based  on untrue  evidence, then  it is  guilty of depriving the accused of  due process.  Thus false testimony  can   be  questioned  by   the  accused regardless of the time that lapsed.

 

              c.   Judgment according to law

 

              d.   Tribunal with jurisdiction

 

 

Administrative Due Process

 

              In administrative  proceedings, the  elements were laid down in the case of Ang Tibay v. CIR as the "seven cardinal  primary rights"  in justiciable  cases before administrative tribunals:

 

              a.  There  must be  a hearing,  where a  party may present evidence in support of his case.

 

              b.  The tribunal must consider the evidence presented by a party.

 

              c.  While the tribunal has no duty to decide the case correctly,  its  decision must  be  supported  by evidence.

 

              d.  The evidence supporting  the decision  must be substantial.  Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

 

              e.  The  evidence must have been  presented at the hearing or at  least contained in the  record and known to the parties affected.

 

              f.  The  tribunal must rely on  its own independent consideration  of   evidence,  and  not  rely on the recommendation of a subordinate.

 

            g.  The decision must state the facts and the law in such a  way that  the parties  can know the issues involved and the reasons for the decision.

 

Substantive Due Process

 

Tanada v. Tuvera, 136 S 27 (1985)

 

F:         Invoking the people's right to be informed on matters of public concern, a right recognized in the Constitution, as well as the principle that laws to be valid and enforceable must be published in the OG or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the OG of various PDs, LOIs, general orders, proclamations, EOs, letters of implementation and administrative orders. Respondents contend, among others that publication in the OG is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates.  It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the OG is indispensable for their effectivity.  The point stressed is anchored on Art. 2 of NCC.                      

 

HELD:  The interpretation given by respondent is in accord w/ this Court's construction of said article.  In a long line of decisions, this Court has ruled that publication in the OG is necessary in those cases where the legislation itself does not provide for its effectivity date--  for then the date of publication is material for determining its date of effectivity, w/c is the 15th day following its publication--  but not when the law itself provides for the date when it goes into effect.

            Respondent's argument, however, is logically correct only insofar as it equates the effectivity of laws w/ the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Art. 2 does not preclude the requirement of publication in the OG, even if the law itself provides for the date of its effectivity. 

            xxx  The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law.  The clear object of the law is to give the general public adequate notice of the various laws w/c are to regulate their actions and conduct as citizens.  W/o such notice and publication, there would be no basis for the application of the maxim ignorantia legis non excusat.  It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of w/c he had no notice whatsoever, not even a constructive one.  It is needless to say that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process.  It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contentsRAM.

 

 

Tanada v. Tuvera,  146 S 446 (1986).  Motion for reconsideration.  xxx [T]he clause "unless it is otherwise provided" refers to the date of effectivity and not to the requirement of publication itself, w/c cannot in any event be omitted.  This clause does not mean that the legislature may make the law effective immediately upon approval, or on any other date, w/o its previous publication.

            Publication is indispensable in every case, but the legislature may in its discretion provide that the usual 15-day period shall be shortened or extended.

            It is not correct to say that under the disputed clause publication may be dispensed w/ altogether.  The reason is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern it. 

            Conclusive presumption of knowledge of the law.--  The conclusive presumption that every person knows the law presupposes that the law has been published if the presumption is to have any legal justification at all.        

            The term laws should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly.  An example is a law granting citizenship to a particular individual, like a relative of Pres. Marcos who was decreed instant naturalization.

            RULE:  All statutes, including those of local application and private laws, shall be published as a condition for their effectivity, w/c shall begin 15 days after publication unless a different effectivity date is fixed by the legislature.

            Coverage.--  Covered by this rule are PDs and EOs promulgated by the Pres. in the exercise of legislative powers.  Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant to a valid delegation.

            Interpretative regulations and those merely internal in nature, i.e., regulating only the personnel of the administrative agency and not the public, need not be published.  Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.

            Publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws.  The mere mention of the number of the PD, the title of such decree, its whereabouts, the supposed date of effectivity, and in a mere supplement of the OG cannot satisfy the publication requirement.  This is not even substantial compliance.  RAM.   

 

            Notes:  In the original case, the  SC ruled that as a matter of substantive due process, any law must be published  before the  people can  be expected  to observe them.  But, according to a split decision, publication  need  not  be made  in  the  Official Gazette.  It is  enough that it be  published in a newspaper of general circulation.

 

          After   the   EDSA   revolution,   upon   the reconstitution  of the  SC, the  original judgment was  reconsidered,  and  the  SC  now  ruled  that publication must be made  in the Official Gazette, pursuant to  CA 638 and  the Civil Code, unless a law "provides  otherwise"  that is, a different mode of publication.

 

            What must be published are (1) all laws of general application, and even those not of general application like  (2) private laws  affecting only particular individuals, e.g., legislative grant of citizenship,  (3) laws  of local  application, and (4)  rules and regulations of a  substantive character.  This means not  only the title but the entire law.  When?   Forthwith, that   is, immediately.  Where?  Only in the Official Gazette.   (See  discussion  under  Administrative Law)

 

            In his concurring  opinion, Justice Feliciano noted that even if a statute or decree states that it shall take effect "immediately upon approval", this should be construed to mean "immediately upon publication"; otherwise, a literal interpretation would render the law unconstitutional.   For the phrase "unless otherwise provided  by law" in Art. 2 of the Civil Code refers not to the necessity of publication (which is constitutionally mandated by the  due process  clause and  therefore cannot  be provided  otherwise  by a  mere  law) but to  the effectivity of the law.   The general rule is that the law will take effect 15 days after its in the Official Gazette  (pursuant to CA  638 and  the Civil  Code).  The law, however,  may  "provide  otherwise",   e.g.   (i)  immediately, which means immediately upon publication, or (ii) one year after publication,  like the Family Code.

 

            Likewise,  he  contended   that  if  the  law provided for a different mode of publication, that is, in a newspaper of general circulation, then the requirements of due process would  have been satisfied.

 

              E.O.  200 took the cue and amended Art.  2 of the Civil  Code: Laws  take effect 15  days after publication  in  the Official Gazette or in a newspaper of general circulation, unless otherwise provided by law.

 

 

            Executive Order No. 200, June 18, 1987

 

PROVIDING FOR THE PUBLICATION OF LAWS EITHER IN THE OFFICIAL GAZETTE OR IN A NEWSPAPER OF GENERAL CIRCULATION IN THE PHILIPPINES AS A REQUIREMENT FOR THEIR EFFECTIVITY.

 

                WHEREAS, Art. 2 of the Civil Code partly provides that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided xxx;"

                WHEREAS, the requirement that for laws to be effective only a publication thereof in the Official Gazette will suffice has entailed some problems, a point recognized by the Supreme Court in Tanada v. Tuvera, et al. (G.R. 63915, Deceber 29, 1986) when it observed that "[t]here is much to be said of the view that publication need not be made in the Official Gazette, considering its erratic release and limited readership;"

                WHEREAS, it was likewise observed that "[u]ndoubtedly, newspapers of general circulation could better perform the function of communicating the laws to the people as such periodicals are more easily available, have a wider readership, and come out regularly;" and

                WHEREAS, in view of the foregoing premises Art. 2 of the Civil Code should accordingly be amended so that laws to be effective must be published either in the Official Gazette or in a newspaper of general circulation in the country;

                NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, by virtue of the powers vested in me by the Constitution, do  hereby order:

 

                Section 1.  Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspaper of general circulation in the Philippines, unless it is otherwise provided. 

 

                Section 2.  Art. 2 of the Republic Act 386, otherwise known as the "Civil Code of the Philippines," and all other laws inconsistent with this Executive Order are hereby repealed or modified accordingly.

 

                Section 3.  This Executive Order shall take effect immediately after its publication in the Official Gazatte.

 

                Done in the City of Manila, this 18th day of June, in the year of Our Lord, nine hundred and eithty-seven.

 

              So  the state  of the  law  at the  present is  as follows:

 

                   1.  Laws  must be published as  a requirement of substantive due process.

 

                   2.  These  laws include  (a) laws  of general application, (b)  private laws, (c) laws  of local application,   (d)   rules  and   regulations   of administrative    agencies   of    a   substantive character,  and (e)  circulars that  carry penalty for their violation.

 

                   3.   The  publication  can  be  made  in  the Official  Gazette or  in  a  newspaper of  general circulation.

 

                   4.  The  law shall take effect  15 days after publication,  unless it  provide otherwise,  which could  be anytime after publication   (e.g. immediately, or one year or any other time).?

 

 

Ynot vs. IAC, 148 SCRA 659 (1987) 

 

F:            Petitioners' 6 carabaos were confiscated by the police for having been transported from Masbate to Iloilo in violation of EO 626-A.  He brought an action for replevin, challenging the consitutionality of the EO.  The trial court sustained the confiscation of the animals and declined to rule on the validity of the law on the ground that it lacked authority to do so.  Its decision was affirmed by the IAC.  Hence this petition for review.

 

HELD:  (1)  Under the provision granting the SC jurisdiction to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may provide final judgments of lower courts" in all cases involving the constitutionality of certain measures, lower courts can pass upon the validity of a statute in the first instance.

            (2)  There is no doubt that by banning the slaughter of these animals (except where there at least 7 yrs. old if male and 11 yrs old if female upon the issuance of the necessary permit) the EO will be conserving those still fit for farm work or breeding and preventing their improvident depletion.  We do not see, however, how the prohibition of the interprovincial transport of carabaos can prevent their indiscriminate slaughter, considering that they can be killed any where, w/ no less difficulty in on province than in another.  Obviously, retaining the carabao in one province will not prevent their slaughter there, any more than moving them to another province will make it easier to kill them there.  As for the carabeef, the prohibition is made to apply to it as otherwise, so says the EO, it could be easily circumsbcribed by simply killing the animal.  Perhaps so.  However, if the movement of the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow that there is no reason either to prohibit their transfer as, not to be flippant, dead meat. 

            (3)  In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the petitioner only after he had filed a complaint for recovery and given a supersedeas bond w/c was ordered confiscated upon his failure to produce the carabaos when ordered by the trial court.  The EO defined the prohibition, convicted the petitioner and immediately imposed punishment, w/c was carried out forthright.  The measures struck him at once and pounced upon the petitioner w/o giving him a chance to be heard, thus denying him elementary fair play

            (4)  It is there authorized that the seized prop. shall "be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit in the case of carabaos."  The phrase may see fit is an extremely generous and dangerous condition, if condition it is.  It is laden w/ perilous opportunities for partiality and abuse, and even corruption.  One searches in vain for the usual standard and the reasonable guidelines, or better still, the limitations that the said officers must observe when they make their distribution.  VV.          

 

 

Montemayor v. Araneta University, 77 SCRA 321 (1977)

 

Lack of Due Process in Termination of Employment Remedied by Hearing in the NLRC.

 

F:            Petitioner was a professor at the Araneta University Foundation.  On 7/8/74, he was found guilty  of making homosexual advances on one Leonardo De Lara by a faculty investating committee.  On 11/8/74, another committee was appointed to investigate another charge of a similar nature against petitioner.  Petitioner, through cousel, asked for the postponement of the hearing set for 11/18 and 19, 1974, but the w/c motion was denied.  The committe then proceeded to hear the testimony of the complainants and on 12/5/74, submitted its report recommending the separation of petitioner from the University.  On 12/12/74, the University applied w/ the NLRC for clearance to terminate petitioner's employment.  Meanwhile, petitioner filed a complaint w/ the NLRC for reinstatement and backwages.  Judgement was rendered in petitioner's favor, but on appeal to the Sec. of Labor, the latter found petitioner's dismissal to be justified.  Hence, this petition for certiorari.

 

HELD:  The Consti. assures to workers security of tenure.  In the case of petitioner, this guarantee is reinforced by the provision on academic freedom.  In denying petitioner's motion for postponement of the hearing, the committee did not accord procedural due process to the petitioner.  This was, however, remedied at the mediation conference called at the Dept. of Labor during w/c petitioner was heard on his evidence.  There he was given the fullest opportunity to present his case.  Petition dismissed. 

 

            Petitioner filed a MFR contending that the hearing in the NLRC did not conform to ther requirements of due process as the witnesses against petitioner were not called so that petitioner could cross-examine them.

 

HELD:  Pettioner did not object to the presentation of the testimony of the complainant and the witnesses at the school investigation and did not assert his right to cross-examine them.  Petitioner waived his right to confront the witnesses, relying solely on the strength of his evidence.  Nor was it incumbent on resp. to present the witnesses in the NLRC.  Petitioner's only right is to be heard.  VV. 

 

 

Tanada v. Phil. Atomic Energy Commission, 141 SCRA 307 (1986)

 

Bias as Disqualification in Administrative Investigations

 

F:         Petition for prohibition brought by taxpayers, questioning the competence of members of the PAEC to pass judgment on the safety of the Bataan Power Plant and charging them w/ bias and prejudgment, based on their publications stating that the plant was safe.

 

HELD:  (1)  Where the validity of an appointment is not challenged in an appropriate proceeding, the question of competence is not w/in the filed of judicial inquiry.  The question of competence is a matter addressed to the appointing power.

            (2)  In these publications, PAEC clearly indicated its prejudgement that the nuclear plant is safe.  The first was published in 1985.  The other 2 were issued earlier, but as the majority of the PAEC commissioners even then were already occupying responsible positions in the PAEC, they cannot escape responsibility for these publications.

            Petition granted and PAEC restrained from acting in the proceedings for issuance of license.  VV.

 

 

BARLONGAY CASE:

 

In re Letter to Mrs. Maria Coronel, 238 SCRA 619

 

F:         Benito Mapilisan was dismissed by the Supreme Court for dishonestry amounting to gross misconduct occasioned by the loss, while in his custody, of a registered mail letter, the contents of which were pilfered, as the P25,000 bank draft contained therein, eventually found its way for encashment with payee bank, PNB.  The contentions of this MFR hinge on the alleged violation of procedural due process by claiming that there was no formal administrative complaint filed against him by either complainant Maria Coronel or the CA nor was there a formal investigation conducted.  Accroding to him, the letter complaint of Maria Coronel failed to properly and formally charge the former since the letter complaint was neither suscribed nor sworn to by the complainant.

 

ISSUE: W/N there was a violation of procedural due process. 

 

HELD:  NO

            Under Sec. 6, Art. VIII of the 1987 Constitution, the Supreme Court shall have administrative supervision over all courts and the personnel thereof.  By this power, the Supreme Court can act on a subject complaint, particularly where , as in this case, an investigation thereon had already been conducted and concluded by the CA  prior to its referral to SC, with the recommendation that movant be charged with gross negligence.   The complaint, though defective as to form, has been fully substantiated on the basis of the accompanying independent investigation Report and Recommendation submitted to SC.  As a matter of fact,  the Court even entertains anonymous complaints where the charge can be fully borne out by the evidence offered, or continues proceeding with the administrative case despite withdrawal by complainant of his complaint where an investigation thereto has been made by the Acting Court Administrator prior to the filing of the complaint.  Thus, what is given paramount importance by this Court in instances where its power of administrative supervision over court employees is invoked is the substantiation of the complaint rather than its conformity with the formal requirements.  Suzette.

 

 

            B.  Due Process and Police Power

 

 

Bautista v. Juinio, 127 SCRA 329 (1984)

 

Ban on Use of Heavy Cars on Week-ends and Holiday s Valid.

 

F:         LOI 689 banned the use of vehicles w/ A and EH plates on week-ends and holidays in view of the energy crisis.  It excepted, however, those classified as S (Service), T (Truck), DPL (Diplomatic), CC (Consular Corps), and TC (Tourist Cars).  The resps., Min. of Public Works, Transportation, issued memo. providing penalties for viol. of the LOI, namely, fine, confiscation of vehicles, and cancellation of registration.  The petitioners brought suit questioning the validity of the LOI on the ground that it was discriminatory and a denial of due process.  The resps. denied the petitioner's allegations and argued that the suit amounted to a request for advisory opinion.  

 

HELD: (1)  Petitioners are owners of an 8 cylinder 1969 Buick and of a 6 cylinder Willy's Kaiser Jeep.  The enforcement of the LOI to them would deprive them of prop.  They, therefore, have standing to challenge the validity of the LOI.

            (2)  But the LOI cannot be declared void on its face.  It has behind it the presumption of validity.  The necessity for evidence to rebut such presumption is unavoidable.  As underlying the questions of fact may condition the constitutionality of legislation the presumption of validity must prevail in the absence of some factual foundation of record overthrowing the statute.   The LOI is an energy conservation measure; it is an apporpriate response to a problem. 

            (3)  Nor does the LOI deny equal protection to the petitioners.  W/in the class to w/c the petitioner belongs the LOI operate equally and uniformly.  That the LOI does not include others does not render it invalid.  The govt is not required to adhere to a policy of "all or none."

            (4)  To the extent that the Land Transpo. Code does not authorize the impounding of vehicles as a penalty, to that extent the memo. of the resps. would be ultra vires VV.

 

 

Ynot v. IAC, supra.

 

 

Anglo-Fil Trading Corp.  v. Lazaro, 124 SCRA 494 (1983)

 

Property Rights Are Subject to the Exercise of Police Power.

           

F:            The petitioners were among 23 stevedoring and arrastre operators at the Mla South Harbor. Their licenses had expired but they were allowed to continue to operate on the strength of temporary permits. On May 4, 1976, the resp Phil Ports Authority decided to allow only one org. to operate the arrastre and stevedoring services. On April 28, 1980, based on the report and recommendation of an evaluation committee, the PPA awarded the exclusive contract for stevedoring services to the Ocean Terminal Services Inc (OTSI). The petitioners brought suit in the CFI to annul the contract for exclusive service. On motion, Ct issued a TRO enjoining PPA and OTSI from implementing the exclusive contract. Later, the ct lifted the TRO  prompting the petitioners to file an action for certiorari with the SC contending that:  (1) ex parte lifting of TRO constituted grave abuse of discretion;  (2)  the award would impair the petitioners' contracts with foreign customers.     

 

HELD: (1)  Considering that the previous grant of TRO in favor of pets. was made ex parte and w/o bond, notice and hearing of the lifting were not necessary, much less mandatory.

            (2)  Stevedoring services are subject to regulation and control for the public good and in the interest of the general welfare. A single contractor furnishing the stevedoring requirements of a port has in its favor the economy of scale and the maximum utilization of equipment and manpower. In return, effective supervision and control as well as collection and accounting of the govt share of revenues are rendered easier than where there are 23 contractors to oversee. As resp ct found from the evidence, the multiple contractor system has bred cut-throat competitions in the port . Understandably, most contractors had been unable to acquire sufficient modern facilities , observe labor standards, maintain efficiency, and pay PPA dues.

            The contention of pets. that due process was violated resulting in a confiscation of private property is likewise without merit. In the first place, the pets were operating merely on "hold over"permits.  In the second place, the award of OTSI was the result of a evaluation of performance of existing contractors made by a special committee created by the PPA.  VV.         

 

Notes:

 

              The  policy adopted by the Philippine Ports Authority to allow only one organization to operate the arrastre and stevedoring services of each port was upheld by the SC as a valid exercise of police power.  For the "one port,  one operator" rule makes possible the better  supervision, collection, efficiency and improvement of services, and prevent cut-throat         competition and non-maximal utilization of equipment and manpower. However, in the awarding  of contracts, the procedures must allow only the capable operator to get the franchise.

              In this case, a  temporary restraining order (TRO) was issued without  notice to the other  party.  As the TRO  was lifted  also  without hearing,  the person  in whose favor it was originally issued cannot complain of the lifting of the TRO without prior hearing.

 

 

Velasco v. Villegas, 120 SCRA (1983)

 

Ordinance Prohibiting Barbershops from Rendering Massage Services Valid.

 

F:         The ordinance was enacted for a two-fold purpose:  (1)  To enable the City of Mla. to collect a fee for operating massage clinics separately from those operating barber ships and (2)  To prevent immorality w/c might probably arise from the construction of separate rooms.

 

HELD:  The SC has been most liberal in sustaining ordinances based on general welfare clause.  VV.       

 

Cruz v. Paras, 123 SCRA 569 (1983)

 

F:            The petitioners are operators or nightclubs in Bocaue, Bulacan.  they filed prohibition suits to stop the Mun. of Bocaue from enforcing an ordinance prohibiting the operation of nightclubs, cabarets, and dance h alls in that mun. or the renewal of licenses to operate them.  The CFI upheld the validity of the ordinance and dismissed the petition.  Hence, this petition for certiorari.

 

HELD:  A mun. corp. cannot prohibit the operation of nightclubs.  Nightclubs may be regulated but not prevented from carrying on their business. RA 938, as orginally enacted, granted municipalities the power to regulate the establishment, maintenance and operation of nightclubs and the like.  While it is true that on 5/21/54, the law was amended by RA 979 w/c purported to give municipalities the power not only to regulate but likewise to prohibit the operation of nightclubs, the fact is that the title of the law remained the same so that the power granted to municipalities remains that of regulation, not prohibition.  To construe the amendatory act as granting mun. corporations the power to prohibit the operation of nightclubs would be to construe it in a way that it violates the constitutional provision that "every bill shall embrace only one subject which shall be expressed in the title thereof."  Moreover, the recentyly-enacted LGC (BP 337) speaks simply of the power to regulate the establishment, and operation of billiard pools, theatrical performances, circuses and other forms of entertainment.  Certiorari granted.  VV.

 

 

            C.  Due Process and Eminent Domain

 

            The taking by the State of  private property in an expropriation proceeding  must be:  (1) for  public  use,  (2)  with just compensation, and  (3)  upon observance of due process.

 

            Article III, Sec. 9. Private property shall not be take for public use without just compensation.

 

            Article XII, Sec. 18.  The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the government.

 

 

                        1.  Taking either for public use or public purpose.

 

Public Use

 

            Public use is equivalent to public purpose.  It is not confined merely to use by the public at large (e.g. roads).  It is enough that  it serves a public purpose, even if it benefit a large group of people short of the public in general (e.g.  expropriating property for the relocation of squatters).

 

Heirs of Juancho Ardona v. Reyes  123 SCRA 220

 

F:         The Philippine Tourism Authority sought the expropriation of 282 Ha of land in Barangay Malubog and Babag in Cebu City. upon deposit of an amount equivalent to 10% of the value of the property, the CFI authorized the PTA to take immediate possession of the property. The charter of the PTA authorizes it to acquire through condemnation proceedings lands for tourist zone development of a sports complex. The petitioners who are occupants of the lands, filed a petition for certiorari in the SC. They contended that (1) the taking was not for public use; (2) the land was covered by the land reform program; and (3) expropriation would impair the obligation of contracts.

 

HELD:  The concept of public use is not limited to traditional purposes for the construction of roads, bridges, and the like. The idea that "public use" means "use by the public" has been discarded. As long as the purpose of the taking is public, then the power of eminent domain comes into play. It is accurate to state then that at present whatever may be beneficially employed for the general welfare satisfies the requirement of public use.  The petititioners have not shown that the area being developed is land reform area and that the affected persons have been given emancipation patents and certificates of land transfer. The contract clause has never been regarded as a barrier to the exercise of the police power and likewise eminent domain.  VV.

 

Sumulong v. Guerrero  154 SCRA 461 (1987)

 

F:         On December 5, 1977, the National Housing Authority filed a complaint for the expropriation of 25 hectares of land in Antipolo, Rizal pursuant to PD 1224 authorizing the expropriation of private lands for socialized housing. Among those lands sought to be expropriated are the petitioners' lands. They brought this suit in the SC challenging the constitutionality of PD 1224.

 

HELD:  Petitioners contend that socialized housing for the purpose of condemnation proceedings is not public use since it will benefit only a handful of people. The "public use" requirement is an evolving concept influences by changing conditions. Urban renewal or redevelopment and the construction of low-cost housing is recognized as a public purpose, not only because of the expanded concept of public use but also because of specific provisions in the Constitution. Shortage in housing is a matter of state concern since it directly and significantly affects public health, safety, the environment and, in sum, the general welfare. Petitioners claim that there are vast areas of lands in Rizal hundreds of hectares of which are owned by a few landowners only. Why should the NHA pick their small lots? Expropriation is not confined to landed estates. The test to be applied for a valid expropriation of private lands was the area of the land and not the number of people who stood to be benefitted. The State acting through the NHA is vested with broad discretion to designate the property. The property owner may not interpose objections merely because in their judgment some other property would have been more suitable. The provisions on just compensation found in PD 1224, 1259, and 1313 are the same provisions which were declared unconstitutional in EPZA v. Dulay (1987) for being encroachments on judicial prerogatives.  VV.

 

 

                        2.  Just compensation must be judicially determined

 

Just Compensation

 

            Just compensation is the fair and reasonable equivalent of the loss sustained by the owner of the property due to the taking; it  is  the fair  market value of the property measured at  the time of  the taking, no matter how long ago it was taken (e.g. the time of the taking was in the 1920's,  the time of payment was in the 1960's, in the Ministerio and Amigable cases, supra), and  using the conversion rates at the time of  taking  (because  according to  those cases, Art. 1250 of  the Civil Code applied only to contractual obligations).

 

 

EPZA v. Dulay  149 SCRA 305 (1987)

 

F:         The San Antonio Development Corporation was the owner of a piece of land in Lapu-Lapu City which the EPZA expropriated in 1979. The commissioners appointed by the trial court recommended that the San Antonio Development Corp. be paid P15.00 per square meter. EPZA filed a petition for certiorari, arguing that under PD 1533 the compensation should be the fair and current market value declared by the owner or the market value determined by the assessor, whichever is lower.

 

HELD:  The method of ascertaining just compensation under PD 1533 constitutes impermissible encroachment on judicial prerogatives.  Although the court technically would still have the power to determine the just compensation for the property, following the decree, its task would be relegated to simply stating the lower value of the property as declared either by the owner or the assessor. Just compensation means the value of the property at the time of the taking. It means a fair and full equivalent for the loss sustained. All the facts as to the condition of the property and its surroundings, its improvements and capabilities should be considered. In this case, the tax declarations used as basis for the just compensation were made long before the declaration of martial law when the land was much cheaper. To peg the value of the lots on the basis of those documents which are outdated would be arbitrary and confiscatory.  VV.

 

 

Manotok v. NHA  150 SCRA 89 (1987)

 

F:         Petitioners are the owners of two large estates known as the Tambunting Estate and Sunog-Apog in Tondo, Manila, both of which were declared expropriated in two decrees issued by President Marcos, PD 1669 and PD 1670. The petitioners contend that the decrees violate their constitutional right to due process and equal protection since by their mere passage their properties were automatically expropriated and they were immediately deprived of the ownership and possession thereof without being given the chance to oppose such expropriation. The government on the other hand contends that the power of eminent domain is inherent in the State and when the legislature or the President through his law-making powers exercises this power, the public use and public necessity of the expropriation and the fixing of the just compensation become political in nature and the courts must respect the decision.

 

HELD:  The challenged decrees are unfair in the procedures adopted and the powers given to the NHA. The Tambunting subdivision is summarily proclaimed a blighted area and directly expropriated by decree without the slightest semblance of a hearing or any proceeding whatsoever. The expropriation is instant and automatic to take effect immediately upon the signing of the decree. No deposit before the taking is required. There is not provision for any interest to be paid upon unpaid installments. Not only are the owners given absolutely no opportunity to contest the expropriation, or question the amount of payments fixed by the decree, but the decision of the NHA are expressly declared beyond judicial review. PD 1669 and 1670 are declared unconstitutional.

 

Teehankee, CJ, concurring: The judgment at bar now learly overturns the majority ruling in JM Tuason v. LTA that the power of Congress to designate the particular property to be taken adn how much may be condemned thereof must be duly recognized, leaving only as a judicial question whether in the exercise of such competence, the party adversely affected is the victim of partiality and prejudice. The SC now rules that such singling out of properties does not foreclose judicial scrutiny as to whether such expropriation by legislative act transgresses the due process and equal protection and just compensation guarantees of the Constitution.  VV.

 

 

Tuason v. Register of Deeds  157 SCRA 613 (1988)

 

F:         Petitioners bought in 1965 from Carmel Farms Inc. a piece of land in Caloocan City by virtue of which they were issued a title in their names and they took possession of their property. In 1973, President Marcos, exercising martial law powers, issued PD 293 cancelling the certificates of titles of Carmel Farms and declaring the lands covered to be open for disposition and sale to members of the Malacañang Association Inc.

 

HELD: The Decree reveals that Mr. Marcos exercised an obviously judicial function. Since he was never vested with judicial power -- such power, as everyone knows, being vested in the SC and such inferior courts as may be established by law -- the judicial acts done by him were under the circumstances alien to his office as chief executive. VV.

 

 

Sumulong v. Guerrero, 154 SCRA 461 (1987), supra.

 

 

                        3.  Due process must be observed

 

De Knecht v. Bautista  100 SCRA 660 (1980)

 

F:         The plan to extend EDSA to Roxas Boulevard to be ultimately linked to the Cavite Coastal Road Project, originally called for the expropriation of properties along Cuneta Avenue in Pasay City. Later on, however, the Ministry of Public Highways decided to make the proposed extension pass through Fernando Rein and Del Pan Streets. Because of the protests of residents of the latter, the Commission on Human Settlements recommended the reversion to the original plan, but the Ministry argued the new route withh save the government P2 million. The government filed expropriation proceedings against the owners of Fernando Rein and Del Pan streets, among whom was petitioner.

 

HELD:  The choice of Fernando Rein and Del Pan streets is arbitrayr and should not receive judicial aprpoval. The Human Settlements Commission concluded that the cost factor is so minimal that it can be disregarded in making a choice between the two lines. The factor of functionality strongly militates against the choice of Fernando Rein and Del Pan streets, while the  factor of social and economic impact bears grievously on the residents of Cuneta Avenue. While the issue would seem to boil down to a choice between people, on one hand, and progress and development, on the other, it is to be remembered that progress and development are carried out for the benefit of the people.  VV.

 

 

Republic v. De Knecht, 182 SCRA 142 (1990)

 

F:         De Knecht was one of the owners of several properties along the Fernando Rein-Del Pan streets which the Government sought to expropriate to give way to the extension of EDSA and the construction of drainage facilities. De Knecht filed a case to restrain the Government from proceeding with the expropriation. Her prayer was denied by the lower court but upon certiorari, the SC reversed the lower court decision and granted the relief asked for by De Knecht ruling that the expropriation was arbitrary. The case was remanded to the lower court.

                No further action was taken despite the SC decision until two years later, in 1983, when the Government moved for the dismissal of the case on the ground that the Legislature has since enacted BP 340 expropriating the same properties for the same purpose. The lower court denied tthe motion. Appeal.

 

RULING: While it is true that said final judgment of this Curt on the subject becomes the law of the case between the parties, it is equally true that the right of petitioner to take private properties for public use upon payment of just compensation is so provided in the Constitution and the laws. Such expropriation proceeding may be undertaken by the petitioner not only by voluntary negotiation with the land owners but also by taking appropriate court action or by legislation.

            When BP 340 was passed, it appears that it was based on supervening events that occured after the 1980 decision of the SC on the De Knecht case was rendered. The social impact factor which persuaded the Court to consider this extension to be arbitrary had disappeared.

            Moreover, the said decision is no obstacle to the legislative arm of the Government in thereafter making its own independent assessment of the circumstances then pravailing as to the propriety of undertaking the expropriation of properties in question and thereafter by enacting the corresponding legislation as it did in this case. The Court agrees in the wisdom and necessity of enacting BP 340. Thus the anterior decision of the Court must yield to the subsequent legislative fiat.  Charo.

 

 

NAPOCOR v. Gutierrez, 193 SCRA 1 (1991)

 

F:         For the construction of its 230 KV Mexico-Limay transmission lines, Napocor's lines have to pass the lands belonging to respondents. Unsuccessful with its negotiations for the acquisition of the right of way easements, Napocor was constrained to file eminent domain proceedings.

 

ISSUE: W/N petitoner should be made to pay simple easement fee or full compensation for the land traversed by its transmissin lines.

 

RULING: In RP v. PLDT, the SC ruled that "Normally, the power of eminent domain results in the taking or appropriation of the title to, and possession of, the expropriated property, but no cogent reason appears why said power may not be availed of to impose only a burrden upon the owner of the condemned property, without loss of title or possession. It is unquestionable that real property may, through expropriation, be subjected to an easement of right of way." In this case, the easement is definitely a taking under the power of eminent domain. Considering the nature and effect of the installation of the transmission lines, the limitations imposed by the NPC against the use of the land (that no plant higher than 3 meters is allowed below the lines)  for an indefinite period deprives private respondents of ts ordinary use.

            For these reasons, the owner of the property expropriated is entitled to a just compensation which should neither be more nor less, whenever it is possible to make the assessment, than the money equivalent of said property. Just equiivalent has always been understood to be the just and complete equivalent of the loss which the owner of the thing expropriated has to suffer by reason of the expropriation. The price or value of the land and its character at the time of taking by the Govt. are the criteria for determining just cmpensation.  Charo.

 

 

 

            D.  Equal Protection

 

            Art. III, Sec. 1.  No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.  

 

            Art. XIII, Sec. 1.  The Congress shall give highest priority to the enactment of measure that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities and remove cultur­al inequities by equitably diffusing wealth and politi­cal power for the common good. 

            To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.

 

 

                        1.  Economic equality

 

 

            Art. XIII, Sec. 2.  The promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance. 

 

            Art. XIII, Sec. 3.  The State shall afford full protec­tion to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment oppor­tunities for all.

            It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law.  They shall be entitle to security of tenure, humane conditions of work, and living wage.  They shall also participate in policy and decision-making process affecting the rights and benefits as may be provided by law.

            The State shall promote the principle of shared respon­sibility between workers and employers and the preferential use of voluntary modes in settling disputes including concil­iation, and shall enforce their mutual compliance therewith to foster industrial peace. 

            The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterpris­es to reasonable returns on investments, and to expansion and growth.

 

 

            Art. XII, Sec. 10.  The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments.  The Congress shall enact measures that will encourage the formation and operation enterprises whose capital is wholly owned by Filipinos.

            In the grant of rights, privileges and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos.

            The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.

 

            Id., Sec. 2.  xxx

            The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

 

            Art. III, Sec. 11.  Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty. 

 

            Art. VIII, Sec. 5.  The Supreme Court shall have the following powers:

            xxx

            (5)  Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged.  Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights.  Rights of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

 

           

            There are areas of economic activity which can be limited to Filipinos.  The Constitution itself acknowl­edges this in various places - exploitation of marine wealth (Art. XII, Sec. 2 par. 2), certain areas of investment (Art. XII, Sec. 10), to name a few.

 

            In Ichong v. Hernandez, 201 Phil. 1155 (1937), the SC upheld the validity of the law which nationalized the retail trade.  For the protection of the law can be observed by the national interest.

 

Ichong v. Hernandez, 201 Phil. 1155 (1937)

 

 

 

            But there are areas where aliens cannot be kept away for the simple reason that they cannot be deprived of a common means of livelihood, especially when they are admitted to the country as immigrants.

 

            In Villegas v. Hiu Chiong Isai Po Ho, 86 SCRA 270 (1978), the SC invalidated a city ordinance imposing a P500 permit fee for aliens who wish to engage in the pursuit of an occupation.  The SC noted that this violated the uniformity of taxation, and deprived aliens of the right to earn a common livelihood.

 

Villegas v. Hiu Chiung Tsai Pao Ho  86 SCRA 270 (1978)

 

F:         An ordinance of the City of Manila prohibited the employment of aliens in any occupation or business unless they first secured a permit from the Mayor of Manila and paid a fee of P500. Respondent, an alien, employed in Manila, brought suit and obtained judgment from the CFI declaring the ordinance null and void.

 

HELD:  The ordinance is a tax measure. In imposing a flat rate of P500, it failed to consider substantial differences in situations among aliens and for that reason violates the rule on uniformity of taxation. It also lays down no guide for granting/denying the permit and therefore permits the arbitrary exercise of discretion by the Mayor. Finally, the ordinance denies aliens due process and the equal protection of the laws. VV.

 

            In Vera v. Cuevas, 90 SCRA 379 (1979), Sec. 169 of the NIRC requiring manufacturers of skimmed milk (non-fat) to put on its label the warning that the milk is harmful for infants, was struck down as unconstitutional on the ground that it did not require the same labeling in the case of filled milk (coco-fat added)

 

            At that time of the decision thought, the law was already inoperative.

 

Vera v. Cuevas  90 SCRA 379 (1979)

 

F:         Respondents are engaged in the manufacture and sale of filled milk products. They brought an action in the CFI for a declaration of their rights in respect of section 169 of the Tax Code. This provision required that "all condensed skimmed milk in whatever form, from which the fatty part has been removed totally or in part or put on sale in the Philippines shall be clearly and legibly marked on its immediate containers with the words: This milk is not suitable for nourishment for infants less than one year of age.

 

HELD:  Sec. 169 of the Tax Code has been repealed by RA 344. At any rate, Sec. 169 applied only to skimmed milk and not to filled milk. Sec. 169 is being enforced only against respondent manufacturers of filled milk but not against manufacturers of skimmed milk, thus denying them the equal protection of the laws.  VV.

 

 

                        2.  Political equality

 

 

            Art. III, Sec. 18. (1)    No person shall be detained solely by reason of his political beliefs and aspirations.

 

            Art. IX, C, Sec. 10.  Bona fide candidates to public office shall be free from any form of harassment and discrimina­tion. 

 

 

            In Dumlao v. Comelec, 95 SCRA 392 (1980), the SC upheld the validity of sec. 4 of Batas Blg. 52 disqualifying retired elective local officials who have received retirement benefits and would have been 65 years old at the start of the term.  It does not violate equal protection, for it gives younger blood the opportunity to run the local government.

 

Dumlao v. Comelec, 95 SCRA 392 (1980)

 

F:         Sec. 4 of BP 52 provides in part that "any retired elective provincial, city ot municipal official who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected, shall not be qualified to run for the same elective local office from which he has retired." Petitioner, Governor of Nueva Vizcaya, sued for prohibition to enjoin enforcement of the law on the ground that it was contrary to the equal protection and due process guarantee of the Constitution.

 

HELD:  Dumlao has not been injured by the application of the provision. No petition seeking his disqualification has been filed against him. His petition is a mere request for advisory opinion. Nevertheless, because of public interest, the question should be resolved. The purpose of the law is to allow the emergence of younger blood in local governments and therefore, not invalid. The retired employee in effect declares himself tired and unavailable for the same government work. VV.

 

 

            In Igot v. Comelec, 95 SCRA 392 (1980), however, the disqualification of candidates con­victed or simply charged with national security offenses was struck down as unconstitutional, for violating the presumption of innocence and thus ultimately the equal political protection.

 

Igot c. Comelec  95 SCRA 392 (1980)

 

F:         Romeo Igot, as taxpayer, voter and member of the bar, and Alfredo Salapantan Jr., as taxpayer and voter, sued for prohibition to enjoin enforcement of BP 52, sec. 4 of which provides for the disqualification as candidate of any person convicted of subversion, insurrection or rebellion or similar offenses.

 

HELD:  Neither petitioner has been convicted nor charged with acts of disloyalty nor disqualified from being candidates for local elective positions. They have no personal or substantial interest at stake and therefore no locus standi. Neither can they sue as taxpayers because the statute does not involve disbursement of public funds. VV.

 

 

                        3.  Social equality

                       

 

            Art. XIII, Sec. 1.  The Congress shall give highest priority to the enactment of measure that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities and remove cultur­al inequities by equitably diffusing wealth and politi­cal power for the common good. 

            To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.

 

 

II.  REQUIREMENTS OF FAIR PROCEDURE

 

 

            A.  Arrests, Searches and Seizures

 

            Art. III, Sec. 2.  The right of the people to be secure in their persons, houses, papers and effects against unreasona­ble searches and seizures of whatever nature and for any purpose, shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirma­tion of the complainant and the witnesses he may pro­duce, and particularly describing the place to be searched and the person or things to be seized. 

 

            Sec. 3.  The privacy of communication and correspondence shall be inviolable, except upon lawful order of the court, or when public safety or order requires other­wise as prescribed by law.            Any evidence obtained in violation of this or the preceding  section, shall be inadmissible for any purpose in any proceeding.

 

 

                        1.  Requirements for Search Warrants

 

 

Yee Sue Kuy v. Almeda, 70 Phil. 141 (1940)

 

F:         By virtue of the sworn application of Almeda, the Chief agent of the Anti-Usury Board, a SW was issued to search the store and premises of the petitioner, accused of violating the Anti-Usury Law. Receipt books, PNs and other articles were seized and retained in the possession of the Anti-Usury Board.

 

ISSUE: W/n the requirements for the issuance of valid SW were complied with.

 

RULING: YES. The applicant, Almeda, in his application, swore that  "he made his own personal investigation and ascertained that petitioner is lending money without a license, charging usurious rates." The witness he presentted testified before the judge and swore that he knew that YEE was lending without a license because he personally investigated the victims who secured loans from the petitioner. Their affidavits were sufficient for, thereunder, they could be held liable for perjury. The existence of probable cause has been determined by the justice of the peace before issuing the warrant complained of, as shown in the warrant itself.  Charo.

 

 

Pasion vda. de Garcia v. Locsin, 65 Phil. 689, (1938)

 

F:         This is a petition for mandamus presented to secure the annulment of a search warrant (SW) & 2 orders of the resp. judge, & the restoration of certain documents alleged to have been illegally seized by an agent of the Anti-Usury Board.

                Almeda, an agent of the Anti-Usury Board, obtained from the justice of the peace of Tarlac, Tarlac, a SW, commanding any officer of the law "to search the person, house or store of the petitioner for certain books, lists, chits, receipts, documents & other papers relating to her activities as userer."

                On the same date, Almeda, accompanied by a captain of the PC, went to the office of the petitioner, and after showing the SW to the petitioner's bookeeper, Salas, & w/o the presence of the petitioner, who was ill and confined at that time, proceeded w/ the execution thereof.  Two packages of records & a locked filing cabinet containing several papers and documents were seized by Almeda and a receipt thereof issued by him to Salas.  Separate criminal cases were filed against petitioner.  Petitioner demanded the return of the documents seized.  Bu motion, pet. challenged the legality of the SW and the devolution of the documents demanded.  By resolution, the resp. judge of CFI denied the petitioner's motion for the reason that though the SW was illegal, there was a waiver on the part of the petitioner.   

                The resolution of 10/5/37 & the order of 1/3/38 are sought, together w/ the SW, to be nullified in these proceedings.

 

HELD:  Freedom from unreasonable searches and seizures is declared a popular right and for a SW to be valid, (1) it must be issued upon probable cause; (2)  the probable cause must be determined by the judge himself and not by the applicant or another; (3)  in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; & (4)  the warrant issued must particularly describe the place to be searched and persons or things to be seized.

            In the instant case, the existence of probable cause was determined not by the judge himself but by the applicant.  All that the judge did was to accept as true the affidavit made by agent Almeda.  It does not appear that he examined the applicant and his witnesses, if any.  Even accepting the description of the prop. to be seized to be sufficient and on the assumption that the receipt issued is sufficiently detailed w/in the meaning of the law, the prop. seized were not delivered to the court w/c issued the warrant, as required by law.  Instead, they were turned over to the resp. provincial fiscal & used by him in building up cases against petitioner.  Considering that at the time the warrant was issued, there was no case pending against the petitioner, the averment that the warrant was issued primarily for exploration purposes is not w/o basis.             

           

            IS THERE A WAIVER?  No express waiver. 

            IS THERE AN IMPLIED WAIVER?  None.

 

            To constitute a waiver of constitutional right, it must appear first that (1)  the right exists; (2)  that the person involved had knowledge, actual or constructive, of the existence of such right; (3)  that said person had an actual intention to relinquish the right.

            It is true that the petitioner did not object to the legality of the search when it was made.  She  could not have objected bec. she was sick & was not present when the warrant was served upon Salas.  Certainly, the constitutional immunity from unreasonable searches and seizures, being a personal one, cannot be waived by anyone except by the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf.  The failure on the part of the petitioner and her bookkeeper to resist or object to the execution of the warrant does not constitute an implied waiver of the consti. right.  It is but a submission to the authority of the law.  The delay in making the demand for the return of the documents seized is not such as to result im implied. waiver.  RAM.    

 

 

Burgos v. Chief of Staff  133 SCRA 800 (1984)

 

Illegal search of newspaper offices and press freedom

 

F:         On the basis of two warrants issued by the RTC of QC, the offices of the Metropolitan Mail and the We Forum were search and printing machines, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the newspapers as well as papers and other literature seized on the ground that they were used in the commission of the crime of subversion. Petitioners brought and action to annul the warrants and compel the return of the things seized.

 

HELD:  Petitioners' thesis is impressed with merit. Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection  with the offense are in the place sought to be searched. When addressed to a newspaper publisher or editor, the application for a warrant  must contain a specification stating with particularity the alleged subversive materials he has published or intending to publish.  Broad statement in the application is a mere conclusion of law and does not satisfy the requirement of probable cause. Another factor that makes the search warrants constitutionally objectionable is that they are in the nature of general warrants. In Stanford v. State of Texas, the US SC declared this type of warrant void. VV.

 

 

Corro v. Lising  137 SCRA 341 (1985)

 

F:         Respondent Judge issued a search warrant for the seizure of articles allegedly used by petitioner in committing the crime of sedition. Seized were printed copies of the Philippine Times, newspaper dummies, typewriters, mimeographing machines and tape recorders, video machines and tapes. The petitioner moved to quash the warrant but his motion was denied.

 

HELD:  The statements made in the affidavits are mere conclusions of law and do not satisfy the requirement of probable cause. The language used is all embracing as to include all conceivable words and equipment of petitioner regardless of whether they are legal or illegal. The search warrant under consideration was in the nature of a general warrant which is objectionable. VV.

 

 

Bache & Co. (Phil.) v. Ruiz, 37 SCRA 823 (1971)

 

F:         The Com. of Internal Revenue through Rev. Examiner de Leon filed an application for a SW against Bache & Co. and its pres., Seggerman for violation of the provisons of the NIRC. As Judge Ruiz was then conducting a hearing, the deposition of de Leon and his witness, Logronio, was taken by the Dep. Clerk of Court. The deposition was later read to the judge who asked the witness to take an oath as to the truth of his statements. The judge then signed the SW and accordingly issued the same.

 

ISSUE: W/n the requirements for the issuance of valid SW were complied with.

 

RULING: NO. The judge did not personally examine the complainant and his witnesses. The judge did not have the opportunity to  observe tthe demeanor of the deponents and to propound initial and follow-up questions which his judicial mind, on account of his training, was in the best position to conceive. This is important in arriving at a sound inference on the all-importatnt question of w/n there was probable cause.  Charo.

 

 

Prudente v. Dayrit, 180 SCRA 69 (1990)

 

F:         Judge Dayrit, upon applicatin of P/Maj. Dimagmaliw, supported by a "Deposition of Witness," executed by P/Lt. Angeles, issued a search warrant for the search and seizure of arms, ammunitions and explosives in the premises of the PUP which were supposed to be in possession of Dr. Prudente. In enforcing the warrant, 3 fragmentation grenades were found in the bathroom of the office of Dr. Prudente.

 

ISSUE:  W/n the searrch warrant was valid.

 

RULING: NO.

            (1) The warant was not issued on the basis of personal knowledge of the applicant and his witness. The probable cause required under the Constitution for the issuance of a search warrant must be in connection with one specific offense, and the judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the  complainant and any witnesses he may produce, on facts personally known to them and attach to the record their sworn statements together with any affidavit submitted. However, in the case at bar, Dimagmaliw merely stated in his application that his knowledge was based "on gathered infrmation from verified sources." The same holds true for the affidavit of Angeles.

            Moreover, the judge did not examine Angeles in the form of searching questions and  answers. What appears on the record are leading questions answereable by yes or no.

 

            (2) As to the claim that the SW failed to particularly describe the place to be searched, the SC ruled that the description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended to be searched. Here, the SW described the place as PUP, with its address and specifically mentioned the offices of the "Dept. of Military Science and Tactics on the ground floor  and the Office of the President at the 2nd floor and the other rooms in that floor." This is deemed sufficient.

 

            (3) There was also an issue as to w/n the SW was issued for one specific offense. The warrrant was issued for violation of PD 1866 which punishes several offenses. While there was failure to state the particular provision of the law violated, the warrant itself qualified the description of the offense as "illegal possession of firearms, etc." This suffices to cure the defect.

            The fact that the word "etc." was added to refer to ammunitions and explosives did not violate the rule on single offense, for notwithstanding that possession of firearms, explosives and ammunitions are punished in different sections of the PD, they are treated as belonging to a single specie. An exception to the rule that a warant shall be issued for a single offense is when existing laws prescribe a single punishment for various offenses.  Charo.

 

 

Olaes v. People, 155 SCRA 486 (1987)

 

F:         Petitioners  claim that the SW issued by resp. judge  was invalid. They also question the extrajudicial confession taken from them without according them the right to assistance of a counsel. The articles seized by virtue of the SW consisting of dried marijuana were admitted as evidence for violation of RA 6425 or Dangerous Drugs Act.

 

RULING: While it is true that the caption of the SW states that it is in connection with "the violation of RA 6425," it is clearly recited in the text thereof that "there is probable cause to believe that Olaes of Olongapo City has in his possession and control, marijuana dried stalks which are suject of the offense stated above." Although the specific section of the law is not stated, there is no question at all that the specific offense alleged to have been committed as  basis for determining probable  cause is alleged. Furthermore, the SW  specifically described the place to be searched and the things to be seized.

 

            As to the extrajudicial confessions of the accused, the same are deemed inadmissible against them. In People V. Galit, the Court declared that: " At the time the person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrrest and he must be shown the warrant of arrest, if any; he shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means - by telephone if possible - or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the wiaver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence."

 

            These requirements were even made stricter under the 1987 Constitution which provides that the rights of a person under custodial investigation cannot be waived except when made in writing and in the presence of counsel.  Charo.

 

 

Presidential Anti-Dollar Salting Task Force v. CA, 171 SCRA 348 (1989)

 

F:         The PASTF was created by virtue of PD 1936 to serve as the President's arm called upon to combat the vice of dollar salting or the blackmarketing and salting of foreign exchange.

 

ISSUE: W/N the PASTF is "such other officer as may be authorized by law" to issue warrants under the 1973 Constitition.

 

RULING: NO. The Court, in reviewing the powers of the PASTF under its enabling law, sees nothing that will reveal a legislative intendement to confer upon the body, quasi-judicial responsiibilities relative to offenses punishable by PD 1883. Its undertaking is simply to determine w/n probable cause exists to warrant the filing of charges with the proper court, meaning to say, to conduct an inquiry preliminary to a judicial recourse, and to recommend action of appropriate authorities.

            The Court agrees that PASTF exercises, or was meant to exercise, prosecutorial powers, and on that ground, it cannot be said to be a neutral and detached judge to determine the existence of probable cause for purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally interested in the success of his case. Although his office "is to see to it that justice if done and not necessarily to secure the conviction of the accused," he stands invariably, as the accused's adversary and his accuser. To permit him to issue warrrants and indeed, warrants of arrest, is to make him both judge and jury in his own right, when he is neither. This makes to our mind and to that extent, PD 1636 as amended by PD 2002, unconstitutional.

            The "responsible officer" referred to under the Cosntitution is one not only possessing the necessary skills and competence but more significantly, the neutrality and independence comparable to the impartiality presumed of a judicial officer.  Charo.

 

 

Salazar v. Achacoso, 183 SCRA 145

 

F:         Pursuant to the powers vested by PD 1920 and EO 1022, POEA Administrator Achacoso ordered the closure of the recruitment agency of Horty Salazar, having verified that she had no license to operate a recruitment agency.  He further ordered the seizure of the documents and paraphernalias, being used or intended to be used as  the means of commiting illegal recruitment.  This order was enforced  on 26 January 1988.  Petitioner filed this suit  for prohibition.

 

Issue:  May the POEA (or the Sec. of Labor) validly issue warrants of serach and seizure (or arrest ) under Art. 38 of the Labor Code?                

 

HELD:  NO.

            The provisions of PD 1920 and EO 1022, now embodied in Art. 38 of the Labor Code, are the dying vestiges of authoritarian rule in its twilights moments.  Under Art. III, Sec 2 of the 1987 Constitution, it is only judges and no other, who may issue warrants of arrest and search.  The exception is in cases of deportation of illegal and undesirable aliens, whom the President of the Commissioner of Immigration may order arrested, following a final order of deportation, for the purpose of deportation.  The Sec. of Labor , not being a judge. may no longer issue search or arrest warrants.  Hence, the authorities must go through the judicial process.  To that extent, we declare Art. 38, par. C of the Labor Code, unconstitutional and of no force and effect.  Suzette.

 

 

(not in VV's revised outline)

 

                                    a.  Existence of probable cause.

 

            Probable cause is such facts and circum­stances as would reasonably make a prudent man believe that a crime have been committed and that the documents or things sought to be searched and seized are in the possession of the person against whom the warrant is sought.  Without probable cause, there can be no valid search warrant.

 

           

            See Pasion vda. de Garcia v. Locsin, 65 Phil. 689, (1938)

 

            In Stonehill v. Diokno, 20 SCRA 385 (1967), 42 search warrants were issued for alleged viola­tion of Central Bank Laws, the Tariff and Customs Code, the NIRC, and the Revised Penal Code. The SC voided the warrants on the ground that it was impossible for the judge to have found probable cause in view of the number of laws alleged to have been violated by the petitioner.  How could he even know what particular provision of each law had been violated?  If he did not know this, how could it be determined if the person against whom the warrant was issued was probably guilty there­of?  In truth, this was a fishing expedition, which violated the sanctity of domicile and priva­cy of communications.  To establish the require­ment of probable cause, the rule is: One crime, one warrant.

 

                                    b.  As determined by a judge

 

            Under the 1987 Constitution, only a judge can issue a warrant; the offensive and much abused phrase "and other responsible officer as may be authorized by law" in the 1973 Constitution has been removed

 

            In Qua Chee Gan v. Deportation Board, 9 SCRA 27 (1963), the SC doubted the power of the President to issue an order of arrest, even assuming the grant of such power under sec. 39 of the Rev. Admi. Code since under the 1935 Constitution, the power to order the arrest of a person has been unmistakably a judicial power.  It was even more doubtful if the President could delegate such a power to the Deportation Board.

 

            The Court noted that unlike in the Philippine Bill of 1902 and the Jones Law of 1916 in which the right to be secure is one's person, house, papers and effects was granted only to citizens; under the 1935 Constitution, it became a popular right available to citizens and aliens alike.

 

            It was not until the case of Viva v. Montesa, 24 SCRA 155 (1968) that the SC settled the doubt and ruled that the Deportation Board could only issue an order of arrest to carry out a deporta­tion order, and not, to summon an alien in order to answer charges filed against him, a distinction already hinted at by the Qua Chee Gan ruling.  In other words, while it can issue a warrant for the purpose of implementing an order, it cannot issue a warrant for the purpose of prosecution.

 

            Under the 1973 Constitution, the Deportation Board was deemed included in the phrase "other responsible officer authorized by law."

 

            The effect of the 1987 Constitution on this power is still uncertain, for although it restores the 1935 provision, its intent seems clearly to confer the power of issuing warrants to judges alone.

 

            c.  After personally examining under oath or affirmation the complainant and his witness.

 

            The examination conducted by the judge takes the form of searching questions.

 

            The requirement that the judge must personally examine the complainant and his witnesses means that the actual examination cannot be delegated to someone else, like the clerk of court.

 

            So said the Court in Bache and Co. (Phil) v. Ruiz, 37 SCRA 823 (1971).  In this case, when the BIR agent and his witnesses arrived in court in the middle of a hearing, the judge suspended the hearing and directed the branch clerk to examine and take the testimony of the witnesses in his chambers.  After he was through with the hearing, he went back to his chambers and finding that the examination was finished, asked the BIR agent and his witnesses if they affirmed what they what they testified to, after which he issued the search warrant in question.

 

            d.  On the basis of their personal knowledge of the facts that they are testifying to.

 

            The determination of the reasonableness of the judicial warrant must be based on the affidavit of one who has personal knowledge of the facts to which he testifies.  The testimony cannot be based on mere belief.  Neither can it be based on a report.  Otherwise, the warrant is void.

 

            Thus, in Burgos v. Chief of Staff, 133 SCRA 800 (1984), reiterating the 1937 case of Rodriguez v. Villamiel, the testimony based on a military report that the newspaper We Forum was used for subversive were held to be not a personal knowledge and so was inadmissible.

 

            Likewise, in Corro v. Lising, 137 SCRA 541 (1985), the testimony based on investigation reports that certain items in the Philippine Times were subversive were held to be not personal knowledge, and thus the search warrant issued was not valid.

 

 

            e.  The search warrant must describe particularly describe the place to be searched and the things to be seized.

 

            Failure to state with particularity the place to be searched and items to be seized makes the warrant used for fishing evidence (a general warrant) which is void.

 

            In Burgos v. Chief of Staff, the description which read "subversive documents, leaflets, papers to promote the objective of the Movement for a Free Philippines, the Light a Fire Movement, and the April 6 Movement" were held not to be particular descriptions, thus making the warrant a general warrant.

 

            In Corro v. Lising, the search and seizure of "printed copies and dummies of Philippine Times, subversive documents, articles, printed matters, handbills, leaflets, banners, and typewriters, tape recorders, etc." was again invalidated for the description was not at all particular or specific, thus making the warrants general warrants.

 

              When it comes to printed matters, the offensive material need not be set out in full.  It is enough if it specifies the issues and the title of the articles.  The instruction to seize "subversive materials" is not valid because the determination of whether a material is subversive or not is not for the police officer to decide; no unfettered discretion must be granted to him.

 

            The matter is different if goods were searched and seized because of their intrinsic quality (as when they are stolen or smuggled), than if the goods were searched for the ideas they contain (as when a "subversive newspaper is sought).  In the latter case, a more detailed description of the physical features of the item is required to avoid delegating the appreciation of ideas, and thus threaten free expression.  Mirasol Notes.

 

 

 

                        2.  When Search May Be Made without a Warrant

 

                                    (a)  When search is made of moving vehicles 

 

            The reason is the person may escape easily if a warrant has to be applied for the mean time.  In the Tariff and Customs Code, customs agents are specifically authorized to search and seize vehicles even without a warrant.

 

            Checkpoints are valid in some instances depending on the purpose (e.g. apprehend a suspected criminal) and the circumstances (e.g. probable cause that the criminal is inside the car).  There is no question that when a child has been reported kidnapped in a community, the police can stop all cars and check if the detained child is in any one of them.

 

 

Papa v. Mago, 22 SCRA 857 (1968)

 

F:         This is an orig. action for prohibition, & certiorari w/ prel. injunction, filed by Papa, et. al., praying for the annulment of the order issued by resp. judge, w/c authorized the rlease under bond of certain goods w/c were seized & held by petitioners in conncection w/ the enforcement of the Tarrif and Customs Code (TCC) but w/c were claimed by resp. Mago, & to prohibit resp. judge from further proceeding in any manner whatsoever in said case.  Pending the determination of this case, this Court issued a writ of prel. inj. restraining the resp. Judge from executing, enforcing and/or implementing the questioned order.

                Pet. Alagao, head of the counter-intelligence unit of the Mla. Police Dept., acting upon a reliable info. as to the effect that a certain shipment of personal effects, already misdeclared and undervalued, would be released the ff. day from the customs zone of the port of Mla. & loaded on 2 trucks, & upon orders of petitioner Papa, chief of police of Mla., & duly deputized agent of the Bureau of Customs, conducted surveillance at gate no. 1 of the customs zone.  The load of 2 trucks, consisting of 9 bales of goods, & the 2 trucks, were seized on instructions of the Chief of Police.

                Claiming to have been prejudiced by the seizure & detention of the 2 trucks & their cargo, Mago & Lonopa filed w/ the CFI-Mla. a petition for mandamus w/ restraining order or prel. inj., alleging among others, that the goods were seized by members of the Mla. Police Dept. w/o SW issued by a competent court.       

 

HELD:  Pet. Martin Alagao & his companion policemen had authority to effect the seizure w/o any SW issued by a competent court.  The TCC does not require said SW in the instant case.  The Code authorizes persons having police authority under Sec. 2703 "to enter, pass through or search any land, inclosure, wharehouse, store or building, not being a dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, box or envelope, or any person on board, or stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduec into the Phils. contrary to law, w/o mentioning the need of a SW.  xxx"  Except in the case of a search of a dwelling house, persons exercising police authority under the Customs law may effect search and seizure w/o a SW in the enforcement of customs law.

            In the instant case, we note that petitioner Alagao, & his companion policemen did not have to make any search before they seized the 2 trucks and their cargo.

            But even if there was a search, there is still authority to the effect that no SW would be needed under the circumstances obtaining in the instant case.

            "The guaranty of freedom from unreasonable searches and seizures is construed as recognizing a necessary difference before a search of a dwelling house or other structure in respect of w/c a SW may readily be obtained and a search of a ship, motorboat, wagon or automobile for contraband goods, where it is not practicable to secure the warrant bec. the vehicle can be quickly moved out of the locality or jurisdiction in w/c the warrant must be sought."

            "xxx  Whether search of and seizure from an automobile upon a highway or other public place, w/o a SW is unreasonable is in its final anaylysis to be determined as a judicial question in view of all the circumstances under w/c it is made."  (Peo. v. Case.)   RAM.

 

 

People v. Lo Ho Wing, 193 SCRA 122

 

F:         Peter Lo , together with co-accused Lim Cheng Huat alias Antonio Lim and Reynaldo Tia, were charged with a violation of  the Dangerous Drugs Act, for the transport of metamphetamine hydrochloride, otherwise known as "shabu".  The drug was  contained in tea bags inside tin cans which were placed inside their luggages.  Upon arrival from Hongkong, they boarded the taxis at the airport which were apprehended by CIS operatives. Their luggages were subsequently searched where the tea bags were opened and found to contain shabu. Only Lo and Lim were convicted.  Tia was discharged as a state witness, who turned out to be a " deep penetration agent" of the CIS in its mission to bust the drug syndicate .

 

Issue:    W/N the search and seizure was legal.

 

HELD:  YES

            That search and seizure must be supported by a valid warrant is not an absolute rule.  One of the exceptions  thereto is a search of a moving vehicle.  The circumstance of the case clearly show that the serach in question was made  as regards a moving vehicle.  Therefore, a valid warrant was not necessary to effect the search on appellant and his co-accused. 

            It was firmly established from the factual findings of the court that the authorities had reasonable ground to believe that appellant would attempt to bring in contraband and transport within the country.  The belief was based on intelligence reports gathered from surveillance activities on the suspected syndicate, of which appellant was touted to be amember.  Aside from this, they were also certain as to the expected date and time of arrival of the accused from China via Hongkong.  But such knowledge was insufficient to enable them to fulfill the requiremnents for the issuance of a search warrant.  Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in the case.  Suzette.

 

 

                                    (b)  When search is an an incident to a valid arrest.

 

            Rule 126, Sec. 12.  Search incident to lawful arrest.--  A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant.  (Rules of Court.)    

 

            A person arrested may be searched for dangerous weapons or anything that proves the commission of the offense.  It follows that the search can only be made within the area of control of the arrested person, and within the time of the arrest.

 

            In Nolasco v. Cruz Pano, 139 SCRA 152 (1985); Milagros Roque and Cynthia Nolasco were arrested at the intersection of Mayon and Margal Streets in QC at 11:30 a.m., having been wanted as high officers of the CPP.  At 12:00 noon, Roque's apartment located 2 blocks away, was searched and some documents seized.  The SC at first held that the search was valid even if the warrant issued was void for failing to describe with particularity the things to be seized, because it was an incident of a valid arrest.

 

            But after the EDSA revolution, the reconstituted SC granted the motion for reconsideration and held that just because there was a valid arrest did not mean that the search was likewise valid.  To be valid, the search must be "incidental" to the arrest, that is, not separated by time or place from the arrest.  If the basis for allowing incidental searches is looked into, one can see that this situation is not one involving a valid incidental search.

 

            The law allows the arresting officer to search a person validly arrested (by frisking him for instance) because (a) a weapon held by the arrested person may be turned against his captor and (b) he may destroy the proof of the crime, if the arrested officer has to first apply for a search warrant from a judge.

 

            If, in the Nolasco case, the search was conducted 30 minutes after the arrest, there is no longer any danger that the captured may turn against the captor; and if the documents in the apartment were 2 blocks away, the search would no longer be justified since there is no way for Roque to go back to the apartment and destroy the documents, having been arrested already.

 

 

Nolasco v. Cruz Paño  139 SCRA 152 (1985)

 

F:         Milagros Aguilar-Roque was arrested together with Cynthia Nolasco by the Constabulary Security Group. Milagrso had been wanted as a high ranking officer of the CPP. The arrest took place at 11:30 a.m. of August 6, 1984. At noon of the same day, her premises were searched and 428 documents, a portable typewriter and 2 boxes were seized. Earlier that day, Judge Cruz Paño issued a search warrant for rebellion against Milagros. On the basis of the documents seized, charges of subversion and rebellion were filed but the fiscal's office merely charged her and Nolasco with illegal possession of subversive materials. Milagros asked for suppression of the evidence on the ground that it was illegally obtained. The search warrant described the things to be seized as "Documents, papers and other records of the CPP, NPA and NDF, xxx".

 

HELD:  The search warrant is void because it fails to describe with particularity the things to be seized. It does not specify what the subversive books and instructions are and what the manuals not otherwise available to the public contain to make them subversive. There is absent a definite guideline as to what items might lawfully be seized, thus giving the officers discretion regarding what articles they should seize. It is thus in the nature of a general warrant. But the seizure of the articles could be justified as an incident of a valid arrest. It is a general rule that, as an incident of an arrest, the place of premises where the arrest was made can also be searched without a search warrant. VV.

 

 

Nolasco v. Cruz Pano, Reconsidered, 147 SCRA 509 (1987)

 

Previous ruling reconsidered

 

F:         Petitioners moved for a reconsideration of the decision, contending that Milagros Aguilar Roque was not lawfully arrested, a search warrant could not be made.

 

HELD:  Considering the positions of the parties (Sol-Gen offered no objection), the motion for partial reconsideration is granted.

 

Teehankee, CJ., concurring:  The better rule is to limit a warrantless search of a person who is lawfully arrested to his person at the time of and incident to his arrest and to "dangerous weapons or anything which may be used as proof of the commission of the offense." (Rule 126, Sec. 12) Since the search was not an incident of an arrest as it was in fact made under a void general warrant, the seizure of documents could not be justified as an incident of an arrest. VV.

 

 

 

                                    (c)  When things seized are within plain view of a searching party

 

 

Roan v. Gonzales, 145 SCRA 687 (1986)

 

F:         The challenged SW was issued by the resp. judge on 5/10/84.  The petitioner's house was searched 2 days later but none of the articles listed in the warrant was discovered.  The officers conducting the search found 1 colt Magnum revolver & 18 live bullets w/c they confiscated.  They are now the bases of the charge against the petitioner.

 

RULING:  Search warrant issued by resp. judge is hereby declared null and void and accordingly set aside.

 

            The petitioner claims that no depositions were taken by the resp. judge in accordance w/ Rule 126, Sec. 4 of the ROC, but this is not entirely true.  Depositions were taken of the complainant's 2 witnesses in addition to the affidavit executed by them.  It is correct to say, however, that the complainant himself was not subjected to a similar interrogation.

            By his own accounts, all that resp. judge did was question Capt. Quillosa on the contents of his affidavit only "to ascertain among others, if he knew and understood the same," and only bec. "the application was not yet subscribed and sworn to."  The suggestion is that he would not have asked any questions at all if the affidavit had already been completed when it was submitted to him.  In any case, he did not ask his own searching questions.  He limited himself to the contents of the affidavit.  He did not take the applicant's deposition in writing and attach them to the record, together w/ the affidavit presented to him.  Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false.  (Mata v. Bayona.)

            The applicant was asking for the issuance of the SW on the basis of mere hearsay and not of info. personally known to him.  His application, standing alone, was insufficient to justify the issuance of the warrant sought.  It was, therefore, necessary for the witnesses themselves, by their own personal info., to establish the applicant's claims.

            Even assuming then that it would have suffied to take the deposition only of the witnesses and not of the applicant himself, there is still the question of the sufficiency of their depositions.

            A study of the deposition taken from witnesess Esmael Morada and Jesus Tohilida, who both claimed to be "intelligence informers," shows that they were in the main a mere restatement of their allegations in their affidavits, except that they were made in the form of answers to the questions put to them by the resp. judge.

            One may well wonder why it did not occur to the resp. judge to ask how the witness could be so certain even as to the caliber of the guns, or how far he was from the window, or whether it was on the first floor or second floor, or why his presence was not noticed at all, or if the acts related were really done openly, in the full view of the witnesses, considering that these acts were against the law.  These would have been judicious questions but they were injudiciously omitted.  Instead, the declaration of the witnesses were readily accepted and the warrant sought was issued forthwith.

 

SOL-GEN ARGUES THAT THE PETITIONER WAIVED WHATEVER DEFECT WHEN THE PETITIONER VOLUNTARILY SUBMITTED TO THE SEARCH AND MANIFESTED HIS CONFORMITY IN WRITING.

 

            We do not agree.  What we see here is pressure exerted by the military authorities, who practically coerced the petitioner to sign the supposed waiver as guaranty against a possible challenge later to the validity of the search they were conducting.

 

            Malum Prohibitum.--  It does not follow that bec. an offense is malum prohibitum, the subject thereof is necessarily illegal per se.  Motive is immaterial in mala prohibita, but the subjects of this kind of offense may not be summarily seized simply bec. they are prohibited.  A SW is still necessary.

 

            Motion to Quash.--  Petitioner should have, before coming to the SC, filed a motion to quash the search warrant by the resp. judge.  But as we said and did in Burgos, "this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the consitutional issues raised."  RAM.

 

People v. Asio, 177 SCRA 250 (1989)

 

F:         Adio was charged with violation of the Dangerous Drugs Act of 1972 for having attempted to sell, deliver, dispatch in transit or transport 3,500 grams of dried marijuana to A2FC Cartel during a buy-bust operation.  Though he pleaded not guilty, court found the accused guilty of the crime charged.

 

Issue:    W/N the marijuana leaves were obtained in violation of  Sec. 2, Art. III of the 1987 Constitution

 

HEKD:  NO

            The rule that a search and seizure must be supported by a valid warrant is not an absolute one.  There are recognized  exceptions to the rule  among them  (1) a search incidental to an arrest; (2) a search of a moving vehicle; and (3)  the seizure of evidence in plain view.  A search and seizure  without a warrant is allowed in buy-bust operations, the circumstances being among those which can be considered exceptional.

            The accused, in this case, was caught red-handed while pushing marijuana.  Hence, he could be lawfully arrested and searhed.  Suzette.

 

Pita v. CA, 178 SCRA 362 (1989)

 

F:         Pursuant to the Anti-Smut Campaign of Mayor Ramon Bagatsng, policemen seized and confiscated  from dealers, distributors, newsstand owners and peddlers along Manila sidewalks, magazines, publications and other reading materials believed to be obscene, pornographic, and indecent and later burned the seized materials in public.    Among the publications seized and later burned was "Pinoy Playboy" magazines published and co-edited by plaintiff Leo Pita.  After his injunctive relief was dismissed by the RTC and his appeal rejected by CA, he seeks review with SC, invoking the guaranty against unreasonable searches and seizure.

 

Issue:  W/N the search and seizure was illegal       

 

HELD:  YES.

            It is basic that searches and seizure may be done only through a judicial warrant , otherwise, they become unreasonable  and subject to challenge.  In Burgos v Chief of Staff (133 SCRA 800) , the SC countermanded the orders of the RTC  authorizing the serach  of the premises WE Forum and Metropolitan Mail, two Metro Manila Dailies, by reason of a defective warrant.  There is a greater reason in this case to reprobate the questioned raid, in the complete absence of a warrant, valid or invalid.  The fact that the instant case involves an obscenity rap makes it no different from Burgos, a political case, because speech is speech, whether political or "obscene".

            The authorities must apply for the issuance of the a search warrant from the judge , if in their opinion, an obscenity rap is in order.  They must convince the court that the materials sought to be seized are "obscene" and pose a clear and present danger of an evil substantive enough to warrant State interference and action.  The judge must determine WON the same are indeed "obscene": the question is to be resolved on a case-to-case basis and on the judge's sound discretion.  If probable cause exist, a search warrant will issue.  Suzette.

 

 

                                    (d)  Stop and Frisk

 

Posadas v. CA, 188 SCRA 288 (1990)

 

F:         Patrolmans Ungab and Umpar, both members of the INP of the Davao Metrodiscom assigned w/ the Intelligence Task Force, were conducting a surveillance along Magallanes, St., Davao City.  While they were w/in the premises of the Rizal Memorial Colleges, they spotted petitioner carrying a "buri" bag & they noticed him to be acting suspiciously.  They approached the petitioner and identified themselves as members of the INP.  Petitioner attempted to flee but was stopped by the 2.  They then checked the "buri" bag of the petitioner where they found 1 caliber .38 Smith & Wesson revolver, w/ 2 rounds of live ammunition for a .38 cal. gun, a smoke grenade, & 2 live ammunition for a .22 cal. gun.  Petitioner was brought to the police station for further investigation.  He was prosecuted for illegal possession of firearms and ammunitions in the RTC of Davao City wherein after a plea of not guilty, and trial on the merits, a decision was rendered finding petitioner guilty.  The CA affirmed the appealed decision in toto.                              

                Hence, the petition for review, the main thrust of w/c is that there being no lawful arrest or search and seizure, the items w/c were confiscated from the possession of the petitioner are inadmissible in evidence against him.

                The Sol-Gen argues that under Sec. 12, R 136 of ROC, a person lawfully arrested may be searched for dangerous weapons or anything (w/c may be) used as proof of a commission of an offense, w/o a SW.

               

HELD:  From Sec. 5, R 113, ROC, it is clear that an arrest w/o a warrant may be effected by a peace officer or private person, among others, when in his presence the person to be arrested has committed, is actually committing, or is attempting to commit an offense, or when an offense has in fact, just been committed, & he has personal knowledge of the facts indicating that the person arrested has committed it.

            At the time the peace officers identified themselves and apprehended the petitioner as he attempted to flee, they did not know that he had committed, or was actually committing, the offense.  They just suspected that he was hiding something in the buri bag.  They did not know what its contents were.  The said circumstances did not justify an arrest w/o a warrant.

            However, there are many instances where a warrant & seizure can be effected w/o necessarily being preceded by an arrest, foremost of w/c is the 'stop & search' w/o a SW at military or police checkpoints, the constitutionality of w/c has been upheld by this Court in Valmonte v. de Villa.

            As bet. a warrantless search and seizure (S & S) conducted at military or police checkpoints and the search thereof in the case at bar, there is no question that, indeed, the latter is more reasonable considering that, unlike in the former, it was effected on the basis of a probable cause.  The probable cause is that when the petitioner acted suspiciously and attempted to flee w/ the buri bag, there was a probable cause that he was concealing something illegal in the bag and it was the right and duty of the police officers to inspect the same.

            It is too much indeed to require the police officers to search the bag in the possession of the petitioner only after they shall have obtained a SW for the purpose.  Such an exercise may prove to be useless, futile and much too late.

            As the Sol-Gen said:

 

                "The assailed S & S may still be justified as akin to a 'stop and frisk' situation whose object is either to determine the identity of suspicious individuals or to maintain the status quo momentarily while the police officers seeks to obtain more info. ...  The US SC held in Terry v. Ohio that "a police officer may in appropriate circumstances & in an appropriate manner approach a person for the purpose of investigating possible criminal behaviour even though there is no probable cause to make an arrest."  In such a situation, it is reasonable for an officer rather than simply to shrug his shoulder and allow a crime to occur, to stop a suspicious individual briefly in order to determine his identity or maintaing the status quo while obtaining more info." 

 

PETITION DENIED.  RAM.

 

 

(not in VV's revised outline)

                                    (e)  When there is a valid express waiver made voluntarily and intelligently.

 

            Waiver cannot be implied from the fact that the person consented or did not object to the search, for it many happen that he did so only out of respect for the authorities.  The waiver must be expressly made.

 

BARLONGAY CASE:

 

People v. De lara

 

F:         After a surveillance conducted, a buy-bust operation was conducted by the police, as a consequence of which, accused was arrested.  The accused already pocketed the marked money and handed two foils to the police when he sensed the presence of police operatives.  He tried to retrieve the two foils but he was prevented from doing so.  He tried to escape by running inside his house.  The police pursued him and were able to subdue him.  The accused admitted that he kept prohibited drugs in his house.  He even showed the arresting officers a blue plastic bag containing prohibited drugs.  The team, together with the accused, proceeded to WPD headquarters for investigation.  During the investigation, accused was apprised of his constitutional rights to remain silent and to have the assistance of counsel.  When appellant was asked to give a written statement, he refused to do so pending arrival of his lawyer.  Accused contends that his arrest and the seizure of the bag containing prohibited drugs was null and void.  He also contends that he was not assisted by counsel during custodial investigation, where he was forced to sign the photocopy of the marked money,  the Receipt of Property Seized, and the Booking and Information Sheet.

 

ISSUE:  Whether or not the arrest of the accused and the seizure of the plastic bag were valid.

 

RULING:  YES.  The accused was caught in flagrante as a result of a buy-bust operation.  There was no need for a warrant.  The policemen were not only authorized but were also under obligation to apprehend the drug pusher even without a warrant.  The policemen’s entry into the house of the accused without a search warrant was in hot-pursuit of a person caught committing an offense in flagrante.  The arrest that followed the hot-pursuit was valid.  The seizure of the plastic bag was the result of the accused’s arrest inside the house.  A contemporaneous search may be conducted upon the person of the arrestee and the immediate vicinity where the arrest was made.

 

ISSUE:  Whether the documents signed by the accused during the investigation were admissible in evidence.

 

RULING:  NO.  There was no showing that accused was then assisted by counsel nor his waiver thereto put into writing.  (The rejection of these evidence would not affect the conviction of the accused in view of the abundance of other evidence establishing his guilt.)  Bam.

 

 

People v. de Gracia, 233 SCRA 716  (July  6, 1994)

 

F:         The incidents involved in this case took place at the height of the coup d'etat staged in December, 1989.  Accused-appellant Rolan­do de Gracia was charged in two separate informations for illegal possession of ammunition and explosives in furtherance of rebel­lion, and for attempted homicide. Appellant was convicted for illegal possession of firearms in furtherance of rebellion, but was acquitted of attempted homicide.

                Surveillance was undertaken by the military along EDSA because of intelligence reports                           about a coup.  Members of  the team were engaged  by rebels in gunfire killing one member of the team.   A searching team raided the Eurocar Sales Office. They were able to find and confiscate six cartons of M-16 ammunition, five bundles of C-4 dynamites, M-shells of different calibers, and "molotov" bombs inside one of the rooms belonging to a certain Col. Matillano. De Gracia was seen inside the office of Col. Matillano, holding a C-4 and suspiciously peeping through a door. The team arrested appellant. They were then made to sign an inventory, written in Tagalog, of the explo­sives and ammunition confiscated by the raiding team. No search warrant was secured by the raiding team.  Accused was found guilty of  illegal possession of  firearms.

                That judgment of conviction is now challenged before us in this appeal.

 

Issue:  Whether or not there was a valid search and seizure in this case.

 

Ruling: YES

            It is admitted that the military operatives who raided the Euro­car Sales Office were not armed with a search warrant at that time.  The raid was actually precipitated by intelligence reports that said office was being used as headquarters by the RAM.  Prior to the raid, there was a surveillance conducted on the premises wherein the surveillance team was fired at by a group of men coming from the Eurocar building. When the military opera­tives raided the place, the occupants thereof refused to open the door despite requests for them to do so, thereby compelling the former to break into the office.  The Eurocar Sales Office is obviously not a gun store and it is definitely not an armory or arsenal which are the usual depositories for explosives and ammunition. It is primarily and solely engaged in the sale of automobiles. The presence of an unusual quantity of high-powered firearms and explosives could not be justifiably or even color­ably explained. In addition, there was general chaos and disorder at that time because of simultaneous and intense firing within the vicinity of the office and in the nearby Camp Aguinaldo which was under attack by rebel forces.  The courts in the surrounding areas were obviously closed and, for that matter, the building and houses therein were deserted.

 

            Under the foregoing circumstances, it is our considered opinion that the instant case falls under one of the exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed. There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. Under such urgency and exigency of the moment, a search warrant could law­fully be dispensed with.

            There are two separate statutes penalizing different offenses with discrete penalties. The Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson, or other offenses, such as illegal possession of firearms, that might conceivably be committed in the course of a rebellion. Presidential Decree No. 1866 defines and punishes, as a specific offense, the crime of illegal possession of firearms committed in the course or as part of a rebellion.

            Subject to the presence of the requisite elements in each case, unlawful possession of an unlicensed firearm in furtherance of rebellion may give rise to separate prosecutions for a violation of Section 1 of Presidential Decree No. 1866, and also a viola­tion of Articles 134 and 135 of the Revised Penal Code on rebel­lion. Double jeopardy in this case cannot be invoked because the first is an offense punished by a special law while the second is a felony punished by the Revised Penal Code, 24 with variant elements.

            Presidential Decree No. 1866 imposes the death penalty where the illegal possession of firearms and ammunition is committed in furtherance of rebellion. At the time the offense charged in this case was committed under the governance of that law, the imposi­tion of the death penalty was proscribed by the Constitution. Consequently, appellant De Gracia could only be sentenced to serve the penalty of reclusion perpetua which was correctly meted out by the trial court, albeit with an erroneous recommendation in connection therewith.  Glynda.

 

           

                        3.  Constitutionality of checkpoints and "areal target zonings."

 

Valmonte v. De Villa, 170 SCRA 256 (1989)

 

F:            On 1/20/87, the NCRDC was activated w/ the mission of conducting security operations w/in its area or responsibility and peripheral areas, for the purpose of establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political dev't of the NCR.  As part of its duty to maitain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela and MM.

                Petitioners aver that, bec. of the institution of said checkpoints, the Valenzuela residents are worried of being harassed and of their sarety being placed at the arbitrary, capricious and whimsical disposition of the military manning the checkpoints, considering that their cars and vehicles are being subjected to regular searches and check-ups, especially at night or at dawn, w/o a SW and/ or court order.  Their alleged fear for their safety increased when Benjamin Parpon, was gaunned down allegedly in cold blood by members of the NCRDC for ignoring and/ or continuing to speed off inspite of warning shots fired in the air. 

 

HELD:  Petitioner's concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints per se, illegal.  No proof has been presented before the Court to show that, in the course of their routine checks, the military, indeed, committed specific violations of petitioners' rights against unlawful search and seizure of other rights.

            The constitutional right against unreasonable searches and seizures is a personal right invocable only by those whose rights have been infringed, or threatened to be infringed.

            Not all searches and seizures are prohibited.  Those w/c are reasonable are not forbidden.

            The setting up of the questioned checkpoints may be considered as a security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace and order for the benfit of the public.  Checkpoints may not also be regarded as measures to thwart plots to destabilize the govt, in the interest of public security.

            Between the inherent right of the state to protect its existence and promote public welfare and an individual's right against a warrantless search w/c is, however, reasonably conducted, the former should prevail.

            True, the manning of checkpoints by the military is susceptible of abuse by the military in the same manner that all governmental power is susceptible of abuse.  But, at the cost of occasional inconveninece, discomfort and even irritation to the citizen, the checkpoints during these abnormal times, when conducted w/in reasonable limits, are part of the price we pay for an orderly society and a peaceful community.  RAM.

 

 

Guazon v. De Villa, 181 SCRA 623 (1990)

 

F:         This is a petition for prohibition w/ prel. inj. to prohibit the military and police officers represented by public respondents from conducting "areal target zonings" or "saturation drives" in MM.

                The 41 petitioners state that they are all of legal age, bona fide residents of MM and Taxpayers and leaders in their respective communities.

                Accdg. to the petitioners, the "areal target zonings" or "saturation drives" are in critical areas pinpointed by the military and police as places where the subversives are hiding.  Petitioners claim that the saturation drives follow a common pattern of human rights abuses.

                Respondents stress 2 points.  First, the resps. have legal authority to conduct saturation drives.  And, second, they allege that the accusations of the petitioners about a deliberate disregard for human rights, are total lies.

                Resps. cite Art. VII, Sec. 17 of the Const.:"The Pres. shall have control of all the executive departments, bureaus and offices.  He shall ensure that the laws are faithfully executed."

                They also cite sec. 18.:"The Pres. shall be the Commander-in-chief of all AFP and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. xxx

                    

HELD:  The Court believes it is highly probable that some violations were actually committed.  This is so inspite of the alleged pleas of barangay officials for the thousands of residents"to submit themselves voluntarily for character and personal verification."  However, the remedy is not to stop all police actions, including the essential  and legitimate ones.  We see nothing wrong in police making their presence visibly felt in troubled areas.  Police cannot respond to riots or violent demonstration if they do not move in sufficient numbers.  A show of force is sometimes necesary as long as the rights of the people are protected and not violated.  A blanket prohibition such as that sought by the petitioners would limit all police actions to one on one confrontation where search warrants and warrants of arrest against specific individuals are easily procured.  Anarchy may reign if the military and the police decide to sit down in their offices bec. all concerted drives where a show of force is present are totally prohibited.

            The remedy is not an original action for prohibition brought through a TP's suit.  Where not one victim complains, and not one violator is properly charged, the problem is not initially for the SC.  It is basically one for the executive departments and for the trial courts.  

            Under the circumstances of this TP's suit, there is no erring soldier or policeman whom we can order prosecuted.  In the absence of clear facts ascertained through an orderly procedure, no permanent relief can be given at this time.  Further investigation of the petitioners' charges and a hard look by admin. officials at the policy implications of the prayed for blanket prohibition are also warranted.

            In the meantime, and in the face of a prima facie showing that some abuses were probably committed and could be committed during future police actions, we have to temporarily restrain the alleged baning on walls, the kicking in of doors, the herding of half-naked men to assembly areas for examination of tattoo marks, the violation of residences even if these are humble shanties of squatters, and other alleged acts w/c are shocking to the conscience.  RAM.

 

 

                        4.  Wire Tapping

 

Republic Act No. 4200

 

I.  UNLAWFUL ACTS

 

            A.   Any person who, without authority from all the parties to the private communication or spoken word, does any of the following acts:  [Sec. 1, par. 1]

            1.  to tap any wire or cable;  or

            2.  to secretly overhear or intercept such communication or spoken word by using any other device or arrangment;  or

            3.  to record such private communication or spoken word by using a device commonly known as dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.

 

            B.  Any person, whether participant or not in the above penalized acts, who:  [Sec. 1, par. 2]

 

            1.  knowingly posseses any tape record, wire, record, disc record or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by law;  or

            2.  to replay the same for any other person or persons;  or

            3.  to communicate the contents thereof, either verbally or in writing;  or

            4.  to furnish transcriptions thereof, whether complete or partial, to any other person.

 

            C.  Any person who shall aid, permit, or cause to be done any of the acts declared to be unlawful:  [Sec. 2]

 

            D.  Any person who shall violate the provisions of Sec. B or the exempted acts below or of an order issued thereunder, or aids, permits, or causes such violation:  [Sec. 2]

 

II.  EXEMPTED ACTS

 

            A.  Use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned below:  [Secs. 1, par. 2]

 

            B.  Any peace officer, who is authorized by the written order of the Court (RTC within whose territorial jurisdiction the acts for which auhtority is applied for are to be executed), to execute any of the acts declared to be unlawful in cases involving the crimes of:  [Sec. 3, par. 1]

 

                        1.  treason

                        2.  espionage

                        3.  provoking war and disloyalty in case of war

                        4.  piracy

                        5.  mutiny in the high seas

                        6.  rebellion

                        7.  conspiracy and proposal to commit rebellion

                        8.  inciting rebellion

                        9.  sedition

                        10.  conspiracy to commit sedition

                        11.  inciting to sedition

                        12.  kidnapping as defined by the RPC        

                        13.  violations of CA 616, punishing espionage and

                other offenses against national security

 

The WRITTEN ORDER shall only be issued or granted upon written application with the examination under oath or affirmation of the applicant and the witnesses he may produce and must show:

 

            a)  that there are reasonable grounds to believe that any of the crimes enumerated herein has been committed or is being committed provided, that in cases involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, such authority shall be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have actually been or are being committed;

            b)  that there are reasonable grounds to believe that evidence may be obtained essential to the conviction of any person for, or to the solution of, or to the prevention of, any of such crimes;

            c)  that there are no other means readily available for obtaining such evidence.

 

Contents:  1.  the identity of the person or persons whose communications, conversations, discussions, or spoken words are to be overheard, intercepted, or recorded and, in the case of telegraphic or telephonic communications, the telegraph line and the telephone number involved and its location;

            2.  the identity of the peace officer authorized to overhear, intercept, or record the communications, conversations, discussions, or spoken words;

            3.  the offense or offenses sought to be committed or prevented;  and

            4.  the period of the authorization.

 

Effectivity:  The authorization shall be effective for the period specified in the order which shall not exceed 60 days from the date of issuance of the order, unless extended or renewed by the court upon being satisfied that such extension or renewal is in the public interest.

 

Procedure:  All recordings made under court authorization within 48 hours after the expiration of the period fixed in the order:

 

            1.  shall be deposited with the court in a sealed envelope or sealed package;

            2.  shall be accompanied by an affidavit of the peace officer granted such authority stating the number of recordings made, the dates and times covered by each recording, the number of tapes, discs, or records included in the deposit and certifying that no duplicates or copies are included in the envelope or package deposited with the court;

            3.  shall not be opened, or the recordings replayed, or used in evidence or their contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversations or communications have been recorded.

 

III.  PENALTY

 

            Any person who violates the provisions of this Act, shall, upon conviction, be punished by:

 

            A.  imprisonment for not less than 6 months or more than 6 years;  and

            B.  with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense;  and

            C.  if the offender is an alien, he shall be subject to deportation proceedings.

 

IV.  ADMISSIBILITY

 

            Any communication or spoken word, or the existence contents, substance, purport, effect or meaning of the same or any part thereof, or any information therein contained, obtained or secured by any person in violation of this Act shall not be admissible in evidence in any judicial, quasi-judicial, or administrative hearing or investigation.  Shirley Alinea Notes.

 

 

Gaanan v. IAC, 145 SCRA 112 (1986)

 

F:         Complainant Atty. Pintor and Montebon offered to withdraw the complaint for direct assault they  filed against Laconico after demanding P8,000 from him.  This demand  was heard by Atty. Gaanan through a telephone extension as requested by Laconico so as to personally hear the proposed conditions for the settlement.  Atty. Pintor was subsequently arrested in an entrapment operation upon receipt of the money.  Since Atty. Gaanan listened to the telephone conversation without complainant's consent, complainant charged Gaanan and Laconico with violation of the Anti- Wiretapping Act (RA 4200).

 

ISSUE:  W/N an extension telephone is among the prohibited devices in Sec. 1 of RA 4200 such that iuts use to overhear a private conversation would constitute an unlawful interception of communication between 2 parties using a telephone line.

 

HELD:  NO

            An extension tel. cannot be placed in the same category as a dictaphone, dictagraph, or other devices enumerated in Sec. 1 of the law as the use thereof cannot be considered as "tapping" the wire or cable of a telephone line.  This section refers to instruments whose installation or presence cannot be presumed by the party or parties being overheard because, by their very nature, they are not of common usage and their purpose is precisely for tapping, intercepting, or recording a tel. conversation. The tel. extension in this case was not installed for that purpose.  It just happened to be there for ordinary office use.  

            Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused.  Thus in the case of doubt as in this case, on WON an extension tel. is included in the phrase "device or arrangement" the penal statute must be construed as not including an extension tel.

            A perusal of the Senate Congressional Record shows that our lawmakers intended to discourage, through punishment, persons suchj as government authorities or representatives  of organized groups from installing devices in order to gather evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the tel. users.  Consequently, the mere act of listening , in order to be punishable must stricly be with the use of the enumerated devices in RA 4200 or others of similar nature.  Suzette.

 

 

                        5.  What may be seized

 

            Rule 126, sec. 2.  Personal property to be seized.--  A search warrant may be issued for the search and seizure of the following personal property:

            (a)  Subject matter of the offense;

            (b)  Stolen or embezzled and other proceeds or fruits of the offense; and

            (c)  Used or intended to be used as a means of committing an offense.  (Rules of Court.)

 

 

                        6.  Exclusionary Rule

 

            Art. III, Sec. 3.  xxx

            (2)  Any evidence obtained in violation of this (privacy of communication and correspondence) or the preceding section (unreasonable searches and seizures)  shall be inadmissible for any purpose in any proceeding.

 

            One of the remedies of one who was victimized by an illegal search is to ask for the suppression of the things seized and the evidence illegally taken.

 

            The exclusionary rule prohibits the use of any evidence obtained in violation of secs. 2 and 3 (1) of Art. III for "any purpose" and in "any proceeding".  The evidence is absolutely useless.  This has not always been the case.

 

            In Moncado v. People's Court (1948), the SC, following the U.S. case of Wolf V. Colorado, rules that evidence illegally obtained is not necessarily excluded if is otherwise admissible under the rules of evidence.  In such case, the evidence admitted, without prejudice to any criminal, civil or administrative liability of the officer who illegally seized it.  In other words, the admissibility of the evidence is not effected by the illegality of the means by which it was acquired.

 

            It was in Stonehill v. Diokno, supra, following the U.S. case of Maop v. Ohio 1969, when the exclusionary rule was first adopted in the Philippines, the SC noting that the total suppression of the thing seized is the only effective means of ensuring the constitutional right which it seeks to preserve.  The Court noted, the insufficiency of the other remedies (e.g. action for damages, criminal punishment, resistance), especially in the Philippines where violations were committed by those in power and were thus equipped with the pardoning power to water down the gravity of the other penalties imposed to violators of those constitutional rights.

 

            The victim may or may not get back the thing seized, depending on whether it is contraband or not.  It the thing is contraband, it would not be returned, and only its suppression can be asked for.  But if the thing is legal, the party can ask for its return, even if no criminal prosecution has yet been filed, as in the Stonehill case.

 

Stonehill v. Diokno, 20 SCRA 383 (1967)

 

F:         Upon application of the officers of the govt (resp. prosecutors), several judges (resp. judges) issued a total of 42 search warrants against petitioners &/ or the corporations of w/c they were officers, directed to any peace officer, to search the perons named and/ or the premises of their offices, warehouses, and/ or residences, and to seize several personal prop. as the "subject of the offense; stolen or embezelled or the fruits of the offense," or "used or intended to be used as the means of committing the offense" as violation of CB Laws, Tariff and Customs Laws (TCC), NIRC and the RPC."

                Alleging that the aforementioned search warrants are null & void, said petitioners filed w/ the SC this orig. action for certiorari, prohibition, mandamus & injunction.  The writ was partially lifted or dissolved, insofar as the papers, documents, and things seized from the officers of the corporations; but the injunction was maintained as regards those found & seized in the residences of petitioners.

 

ISSUES:     (1)  With respect to those found & seized in the offices of the corporations, w/n petitioners have cause of action to assail the validity of the contested warrants.

                  (2)  In connection w/ those found & seized in the residences of petitioners, w/n the search warrants in question and the searches and seizures made under the authority thereof are valid.

                  (3)  If the answer in no. 2 is no, w/n said documents, papers and things may be used in evidence against petitioners.

           

HELD: (1)  No.  Petitioners have no cause of action to assail the legality of the contested warrants and the seizure made in pursuance thereof bec. said corporations have their respective personalities, separate and distinct from the personality of petitioners.  The legality of a seizure can be contested only by the party whose rights have been impaired thereby and that the objection to an unlawful search and seizure is purely personal and cannot be avalied of by 3rd parties.

           

            (2)  No.  Two points must be stressed in connection w/ Art. III, Sec. 2 of the Consti:  (a)  that no warrant shall issue but upon probable cause to be determined by the judge in the manner set forth therein; & (b)  that the warrant shall particularly describe the things to be seized. 

            None of these requirements has been complied w/.  It was stated that the natural and juridical persons has committed a violation of CB laws, TCC, NIRC & RPC.  No specific offense had been alleged in said applications.  The averments thereof w/ respect to the offense committed were abstract.  As a consequence, it was impossible for the judges who issued the warrants to have found the existence of a probable cause, for the same presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts, or committed specific omissions, violating a given provision of our criminal laws.

            General search warrants are outlawed bec. they place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims, caprice or passion of peace officers.

            The warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicit command of our Bill of Rights--  that the things to be seized be particularly described-- as well as tending to defeat its major objective:  the elimination of general warrants.  RAM.

 

 

                        7.  Civil Action for Damages

 

            A civil case for damages can also be filed pursuant to Article 32 of the Civil Code.

 

            In Aberca v. Ver, the SC held that even if the privilege of the writ is suspended, the court can nevertheless entertain an action not only against the task force but even against the top ranking officials who ordered the seizure, to recover damages for the illegal searches and seizures made in a despotic manner.  By so doing, one can indirectly inquire into the validity of the suspension of the privilege.

 

Aberca v. Ver, 160 SCRA 590 (1988)

 

Suspension of privilege of Habeas Corpus not a bar to a damage suit

 

F:         Petitioners brought suit alleging that General Fabian Ver had ordered the Task Force Makabansa of the AFP to conduct "preemptive strikes against known communist terrorists' underground houses" in Metro Manila. The TFM raided some places using defective warrants; they seized personal belongings of petitioners; they had been interrogated in violation of their right to silence and to counsel; they had been tortured and intimidated. Petitioners asked for payment of damages for violations of their constitutional rights.

 

HELD:  The suspension of the privilege of the writ of habeas corpus does not destroy petitioners' right and cause of action for damages for illegal arrest and detention. VV.

 

 

Forbes v. Chuoco Tiaco, 16 Phil. 534 (1910)

 

 

Forbes v. Chuoco Tiaco, Affirmed, 40 Phil. 1122 (1913)

 

 

                       

                        8.  Search and Seizure by Private Persons 

 

People v. Marti, 193 SCRA 57 (1991)

 

F:         Before delivery of appellant's box to the Bureau of Customs and/ or Bureau of Posts, Mr. Job Reyes (proprietor) & husband of Anita Reyes, following standard operating procedure, opened the boxes for final inspection.  When he opened appellant's box, a peculiar order emitted therefrom.  His curiosity aroused, he squeezed one of the bundles allegedly containing gloves and felt dried leaves inside.  Opening one of the bundles, he pulled out a cellophane wrapper protruding from the opening of one of the gloves.  He made an opening on one of the cellophane wrappers and took several grams of the contents thereof.

                Job Reyes reported the incident to the NBI and requested a laboratory examination of the samples he extracted from the cellophane wrapper.

                It turned out that the dried leaves were marijuana flowering tops as certified by the forensic chemist of the Narcotics Section of the NBI.

                Thereafter, an information was filed against appellant for violation of RA 6425.

 

APPELANT CONTENDS that the evidence subject of the imputed offense had been obtained in violation of his consti. rights against unreasonable searches and seizures and privacy of communication and therefore argues that the same should be held inadmissible in evidence.

 

                The case at bar assumes a peculiar character since the evidence sought to be excluded was primarily discovered and obtained by a private person, acting in a private capacity and w/o the intervention and participation of state authorities.

               

ISSUE:  May an act of a private individual, allegedly in violation of appellant's constitutional rights, be invoked against the state?

 

HELD:  We hold in the negative.  In the absence of governmental interference, the liberties guaranteed by the Consti. cannot be invoked against the State.  This constitutional right refers to the immunity of one's person, whether citizen or alien, from interference by govt. xxx  (Villanueva v. Querubin.)

            The contraband in the case at bar having come into possession of the govt w/o the latter transgressing appellant's rights against unreasonable searches and seizures (S & S), the Court sees no cogent reason why the same should not be admitted against him.

            Appellant, however, would like this Court to believe that NBI agents made an illegal search and seizure of the evidence later on used in prosecuting the case.  The arguments of appellant stands to fall on its own weight, or the lack of it.

            First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an illegal S & S of the prohibited merchandise.  Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made the search/ inspection.  Such inspection was reasonable and a SOP on the part of Mr. Reyes as a precautionary measure bef. delivery of packages to the Bureau of Customs or Bureau of Posts.

            Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless S & S proscribed by the Consti.  Merely to observe and look at that w/c is plain sight is not search.   Having observed that w/c is open, where no trespass has been committed in aid thereof, is not search.

            That the Bill of Rights embodied in the Consti. is not meant to be invoked against acts of private individuals finds support in the deliberations of the Con Com.:  " xxx The Bill of Rights governs the relationship between the individual and the state.  Its concern is not the relation between individuals, between a private individual and other individuals. xxx"  (Sponsorship speech of Commissioner Bernas.)

            The constitutional proscription against unlawful S & S therefore applies as a restraint directed only against the govt and its agencies tasked w/ the enforcement of the law.  Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.

            It the search is made at the behest or inititiation of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and w/o the intervention of police authorities, the right against unreasonable S & S cannot be invoked for only the act of private individuals, not law enforcers, is involved.  In sum, the protection against unreasonable S & S cannot be extended to acts committed by private individuals so as to bring it w/in the ambit of alleged unlawful intrusion by the govt.  RAM.

  

 

                        9.  In the issuance of warrants of ARREST, as distinguished from SEARCH warrants, the judge may rely simply on fiscal's certification as to probable cause

 

Compare Rule 112, Sec. 6 (on warrants of arrest) with Rule 126, Sec. 4 (on search warrants.)

 

            Rule 112, Sec. 6.  When warrant of arrest may issue.--  (a)  By the Regional Trial Court.--  Upon the filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused.

            (b)  By the Municipal Trial Court.--  If the municipal trial judge conducting the preliminary investigation is satisfied after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice, he shall issue a warrant of arrest.  (Rules of Court.)

 

 

            Rule 126, Sec. 4.  Examination of complainant; record.--  The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the records their sworn statements together with any affidavits submitted.

 

 

            The requirement in the case of warrants of arrest is relaxed in that the judge can rely on the certification of the fiscal that the latter has conducted the preliminary investigation and has found probable cause on the part of the accused.  The judge can issue the warrant on the basis of the information filed by the fiscal and the certification of probable cause.

 

            The SC has allowed this practice in Amarga v. Abbas, 98 Phil. 739 (1956), noting that it has been practice long settled and that a judge can issue an order to arrest on the basis of the certificate.

 

            Of course, if the judge is in doubt, he can always ask the fiscal to submit the records of the preliminary investigation, so he could determine for himself if, on the basis of the affidavits, there exists probable cause.  It he is satisfied with the affidavits, he need not summon the affiants.

 

Amarga v. Abbas, 98 Phil. 739 (1956)

 

F:         Municipal Judge Samulde conducted a preliminary investigation (PI) of Arangale upon a complaint for robbery filed by complainant Magbanua, alleging that Arangale harvested palay from a portion of her land directly adjoining Arangale’s land.  After the PI, Samulde transmitted the records of the case to Provincial Fiscal Salvani with his finding that “there is prima facie evidence of robbery as charged in the complaint”.  Fiscal Salvani returned the records to Judge Samulde on the ground that the transmittal of the records was “premature” because Judge Samulde failed to include the warrant of arrest (WA) against the accused.  Judge Samulde sent the records back to Fiscal Salvani stating that although he found that a probable cause existed, he did not believe that Arangale should be arrested.

                Fiscal Salvani filed a mandamus case against Judge Samulde to compel him to issue a WA.  RTC dismissed the petition on the ground that the fiscal had not shown that he has a clear, legal right to the performance of the act to be required of the judge and that the latter had an imperative duty to perform it.  Neverhteless, Judge Samulde was ordered to issue a WA in accordance with Sec. 5, Rule 112 of the 1985 Rules of Court.

 

ISSUE:  Whether it is mandatory for the investigating judge to issue a WA of the accused in view of his finding, after conducting a PI, that there exists prima facie evidence that the accused commited the crime charged.

 

HELD:  THE PURPOSE OF A PRELIMINARY INVESTIGATION DOES NOT CONTEMPLATE THE ISSUANCE OF A WA BY THE INVESTIGATING JUDGE OR OFFICER.

 

            Under Rule 112 of the 1985 ROC, a PI is conducted on the basis of affidavits to determine whether or not there is sufficient ground to hold the accused for trial. To determine whether a WA should issue, the investigating judge must have examined in writing and under oath the complainant and his wirtnesses by searching questions and answers; he must be satisfied that a probable cause exists; and there must be a need to place the accused under immediate custody in order not to frustrate the ends of justice.  It is not obligatory, but merely discretionary, upon the investigating judge to issue a WA, for the determination of whether it is necessary to arrest the accused in order not to frustrate the ends of justice, is left to his sound judgment or discretion.

            The fiscal should, instead, have filed an information immediately so that the RTC may issue a warrant for the arrest of the accused.  Bam.

 

 

Beltran v. Makasiar, 167 SCRA 393 (1988)

 

F:            The Pres. of the Phils. filed a complaint for libel against the petitioners, who were publisher and columnist of the Philippine Star, based on the following statement in Beltran's column of Oct. 12, 1987 entitled "The Nervous Officials of the Aquino Administration:"  "If you will recall, during the Aug. 29 coup attempt, the Pres. hid under her bed, while the firing was going on-- perhaps the first Commander-in-Chief of the AFP to have to do so."

                Instead of submitting his counter-affidavit, Beltran moved to dismiss the complaint.  The fiscal deniend his motion after finding a prima facie case against the petitioners and filed the case in court w/c thereafter issued warrants of arrest against the petitioners.  The petitioners filed a petition for certiorari and prohibition.

 

HELD:  The addition of the word "personally" after the word "determined" (Art. III, Sec. 2) and the deletion of the grant of authority by the 1973 Consti. to issue warrants to "other responsible officer as may be authorized by law," has apparently convinced petitioner Beltran that the Consti. now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest.  This is not an accurate interpretation.  What the Consti. underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause.  In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses.  Following established doctrine and procedure, he shall:  (1)  personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2)  if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.  Sound policy dictates this procedure, otherwise judges would be unduly laden w/ the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. 

            xxx  VV.

 

 

Samulde v. Salvani, 165 SCRA 734 (1988)

 

F:         Municipal Judge Samulde conducted a preliminary investigation (PI) of Arangale upon a complaint for robbery filed by complainant Magbanua, alleging that Arangale harvested palay from a portion of her land directly adjoining Arangale’s land.  After the PI, Samulde transmitted the records of the case to Provincial Fiscal Salvani with his finding that “there is prima facie evidence of robbery as charged in the complaint”.  Fiscal Salvani returned the records to Judge Samulde on the ground that the transmittal of the records was “premature” because Judge Samulde failed to include the warrant of arrest (WA) against the accused.  Judge Samulde sent the records back to Fiscal Salvani stating that although he found that a probable cause existed, he did not believe that Arangale should be arrested.

                Fiscal Salvani filed a mandamus case against Judge Samulde to compel him to issue a WA.  RTC dismissed the petition on the ground that the fiscal had not shown that he has a clear, legal right to the performance of the act to be required of the judge and that the latter had an imperative duty to perform it.  Neverhteless, Judge Samulde was ordered to issue a WA in accordance with Sec. 5, Rule 112 of the 1985 Rules of Court.

 

ISSUE:  Whether it is mandatory for the investigating judge to issue a WA of the accused in view of his finding, after conducting a PI, that there exists prima facie evidence that the accused commited the crime charged.

 

HELD:  THE PURPOSE OF A PRELIMINARY INVESTIGATION DOES NOT CONTEMPLATE THE ISSUANCE OF A WA BY THE INVESTIGATING JUDGE OR OFFICER.

 

            Under Rule 112 of the 1985 ROC, a PI is conducted on the basis of affidavits to determine whether or not there is sufficient ground to hold the accused for trial. To determine whether a WA should issue, the investigating judge must have examined in writing and under oath the complainant and his witnesses by searching questions and answers; he must be satisfied that a probable cause exists; and there must be a need to place the accused under immediate custody in order not to frustrate the ends of justice.  It is not obligatory, but merely discretionary, upon the investigating judge to issue a WA, for the determination of whether it is necessary to arrest the accused in order not to frustrate the ends of justice, is left to his sound judgment or discretion.

            The fiscal should, instead, have filed an information immediately so that the RTC may issue a warrant for the arrest of the accused.  Bam.

 

 

                        10.  When arrest may be made without a warrant

 

            Rule 113, Sec. 5.  Arrest without warrant; when lawful.--  A peace officer or a private person may, without a warrant, arrest a person:

            (a)  When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

            (b)  When an offense, has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it;

            (c)  When the person to be arrested is a prisoner who has escaped from a penal establishment of place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

            In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section. 7.  (Rules of Court.)

 

 

            Rule 113, sec. 5 talks of "citizen arrests", cases where an arrest can be made either by the peace officer or a private person without need of a warrant. 

            The key element in the first case is that the offense was committed "in his presence".  The key element in the second case is that he has "personal knowledge".

 

            Thus, in People v. Burgos, 144 SCRA 1 (1986), the arrest made by the constabulary without a warrant of a farmer on the basis of information that he was a subversive was held unconstitutional, since there was no personal knowledge of the offense itself.

 

            The gun and subversive documents found by the officer and admitted by the former to be his were likewise held inadmissible because the admission violated the Miranda rule.

 

 

                                    a.  Strict enforcement of rule

 

People v. Burgos, 144 SCRA 1 (1986)

 

F:         On the basis of info. given by Cesar Masamlok, the appellant was arrested while plowing his farm in Tiguman, Davao del Sur, on May 13, 1982, on charges of illegal possession of firearm in furtherance of subversion.  A .38 caliber revolver was found buried under his house.  Subversive documents were also seized from a place near his house.  Two arresting officers testified that the appellant had readily admitted ownership of the gun and the documents.  The appellant was found guilty of the charge and sentenced to 20 years of reclusion temporal, as minimum, to reclusion perpetua, as maximum, and the gun and documents were ordered confiscated. 

 

HELD:  (1)  Under R 113, Sec. 5 (a), the arresting officer must have personal knowledge that the crime has been committed, is being committed, or is about to be committed, in order to justify an arrest w/o a warrant.  The offense must also be committed in his presence or w/in his view.  There is no such personal knowledge in this case.  Hence the arrest of the appellant was illegal.

            (2)  Consequently, the incidental search and seizure were likewise illegal and the firearm and document are inadmissible in evidence.

            (3)  The prosecution argues that the appellant admitted ownership of the gun and claims that it was he who pointed to the place where the subversive documents were hidden.  However, as the appellant was not informed of his constitutional rights at that time, his admission is inadmissible under [Art. III, Sec. 12 (1).]  It is true that 6 days later he executed a confession before the fiscal w/ the assistance of counsel, but it was then already too late.

            (4)  As the remaining evidence against the appellant is the testimony of Cesar M. and it is uncorroborated and unreliable, the appellant should be acquitted, but the gun and the subversive documents must be confiscated.  VV.

 

Go v. CA, 206 SCRA 138 (1992)

 

 

BARLONGAY CASE:

 

People v. Manlulu, 231 SCRA 701

 

F:         Alfaro, a NARCOM agent, was stabbed and shot  in a drinking spree.  His drinking companions, Manlulu and Samson were arrested nineteen hours after the incident.  Patrolman Perez arrested Manlulu on the information given by Manlapaz, who was also drinking with the accused and the victim.  Patrolman Perez seized from Manlulu the .45 cal. Pistol and Casio wristwatch said to belong to Alfaro, without a warrant and without informing Manlulu of his right to counsel. 

 

ISSUE:  Whether or not the arrest and seizure of the gun and the watch was valid.

 

HELD: The warrantless arrest was invalid.  The killing took place at one o’clock in the morning.  The arrest and the consequent search and seizure came at around seven o’clock that evening, some nineteen hours later.  This instance cannot come within the purview of a valid warrantless arrest.  Paragraph (b) Sec. 5, Rule 113 of the 1985 Rules on Criminal Procedure provides that the arresting officer must have “personal knowledge” nor was the offense “in fact just been committed.”  While Pat. Perez may have personally  gathered the information which led to the arrest of Manlulu, that is not enough.  The law requires “personal knowledge”.  Obviously, “personal gathering of information” is different from personal knowledge.  The rule requires that the arrest immediately follows the commission of the offense, not some nineteen hours later.

            However, the flaw, fatal as it may be, becomes moot in view of the eyewitness account of Manlapaz which the Court found credible.  In spite of the nullification of the arrest of accused Manlulu, and the exclusion of real evidence, as well as his extra-judicial confession  which was taken in violation of the Constitution, still the prosecution was able to prove the guilt of the accused beyond reasonable doubt.  Bam.

 

 

People v. Rodriguez, 232 SCRA 498  (April 25, 1989)

 

F:         Pat. Marvin Pajilan received a phone call from the desk officer of Sub-Station I, namely, Michael Orbeta, who informed him that a person named 'Alyas Allan' was selling marijuana at No. 8199 Constancia St., Makati, Metro Manila and requested that said person be apprehended. Acting on this phone call of desk officer Michael Orbeta, a team of policemen posted themselves about 10 to 15 meters from the house located at 8199 Constancia St., Makati. They saw a tricycle with 3 persons on board, a driver and 2 passengers, stop in front of the house at 8199 Constancia  St. They also saw a male person come out of the said house and ap­proach and talk to the driver of the tricycle. After a while they saw the male person go back to the house and a little later come back and hand to the tricycle driver 'a suspicious stuff of a cigarette, a marijuana cigarette', they further saw the tricycle driver in turn give something to the male person. Pat. Pajilan together with his companions approached the male person and the tricycle driver and after introducing themselves as police offic­ers, they asked the male person, the tricycle driver and his 2 passengers to bring out the contents of their pockets, which the male person, the driver and the passengers of the tricycle did. The male person brought out from his pockets 2 small plastic bags containing suspected marijuana leaves. The tricycle driver brought out from his right front pocket 3 sticks of suspected marijuana cigarettes. Nothing illegal was found in the pockets of the 2 passengers of the tricycle.

                The appellant contends that the police officers had no personal knowledge that he was indeed handing marijuana to Enrico Bacod as they were 10-15 meters away from the alleged sale transaction. The arrest therefore was not valid as the requirements for a warrantless arrest were not complied with.

 

Issue: Was the warantless arrest valid?

 

Ruling:  YES.

            The warrantless arrest made by the law enforcers was valid since it falls under the provisions of Rule 113, Sec. 5(a) of the Rules of Court which provides:

            Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person:

            (a)  When, in his presence, the person to be arrested has commit­ted, is actually committing, or is attempting to commit an of­fense;

           

            Having caught the appellant in flagrante as a result of the buy-bust operation, the policemen were not only authorized but were also under obligation to apprehend the drug pusher even without a warrant of arrest. The police officers were tipped off by an informer about the illegal trade of the accused. The exact loca­tion where this trading in drugs was taking place was given to them. The 'suspicious stuff' taken from the accused were con­firmed to be marijuana after tests were conducted on them. The attendant circumstances taking place before their eyes led the police officers to reasonably conclude that an offense was actu­ally being committed.  Glynda.

 

 

                                    b.  Exceptions to strict enforcement

 

                                                (1)  "Continuous" crimes of subversion

 

Umil v. Ramos, 187 SCRA 311 (1990)

 

PER CURIAM

 

            These are 8 petitions for habeas corpus (HC) filed bef. the Court.  The Court finds that the persons detained have not been illegally arrested nor arbitrarily deprived of their constitutional right to liberty and that the circumstances attending these cases do not warrant their release on HC.

            An arrest w/o a warrant, under Sec. 5, pars. (a) and (b) of Rule 113, ROC, as amended is justified when the person arrested is caught in flagrante delicto, viz., in the act of committing an offense; or when an offense has just been committed and the person making the arrest has personal knowledge of the facts indicating that the person arrested has committed it.

            The persons in whose behalf these petitions for HC have been filed had freshly committed or were actually committing an offense, when apprehended, so that their arrests, w/o warrant were clearly justified, and that they are, further detained by virtue of valid informations filed against them in court.

 

I

 

            In Umil v. Ramos, RIOU-CAPCOM received confidential info. about a member of the NPA-Sparrow unit being treated for a gunshot wound at the St. Agnes Hospital in Roosevelt Ave., Q.C.  It was found that the wounded person, who was listed in the hospital records as Ronnie Javelon, is actually Rolando Dural, a member of the NPA liquidation squad, responsible for the killing of 2 CAPCOM soldiers the day before.  Dural was then transferred to the Regional Medical Services of the CAPCOM.

            Upon positive identification by an eyewitness, Dural was referred to the Caloocan City Fiscal who conducted an inquest and thereafter filed w/ the RTC-Caloocan City an info. charging Dural w/ the crime of "Double Murder w/ Assault upon agents of persons in authority."

            The petition for HC, insofar as Umil & Villanueva are concerned, is now moot and academic and is accordingly dismissed, since the writ does not lie in favor of an accused in a crim. case, who has been released on bail.

            As to Dural, he was not arrested while in the act of shooting the 2 soldiers.  Nor was he arrested after the commission of said offense for his arrest came a day after the shooting incident.  However, Dural was arrested for being a member of the NPA, an outlawed subversive organization.  Subversion being a continuing offense, the arrest of Dural w/o warrant is justified as it can be said that he was committing an offense when arrested.

            The arrest of persons involved in rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense.  The arrest, therefore, need not follow the usual procedure in the prosecution of offenses w/c requires the determination by a judge of the existence of probable cause bef. the issuance of a judicial warrant and the granting of bail if the offense is bailable.  Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against govt forces, or any other milder acts but equally in pursuance of the rebellious movement. xxx (Garcia-Padilla v. Enrile.)

            Dural was found guilty of the charge and is now serving the sentence imposed upon him by the trial court.  Thus, the writ of HC is no longer available

 

II

 

            The arrest of Amelia Roque and Wilfredo Buenaobra, w/o warrant is also justified.

           

            In view of the revelations made by Rogelio Ramos, a former NPA, the Constantino house in Marikina Heights was placed under military surveillance and on 8/12/88, pursuant to a search warrant , a search of the house was conducted at 5 PM by CISC-NCD & CSG.  In the course of the search were found several firearms, regular power supply, antennae, speaker and subversive documents.

            When confronted, R. Constantino (RC) could not produce any permit or authority to possess the firearms, ammunition, radio, etc.  He was brought to CIS HQ for investigation.  When questioned, he refused to give a written statement, although he admitted that he was a staff member of the executive of the NUFC and a ranking member of the International Dept. of the CPP.

            At about 8 PM, same day, Buenaobra arrived at RC's house.  When arrested, he readily submitted to the military agents that he is a regular member of the CPP/ NPA and that he went to the place to deliver letters to "Ka Mong," referring to RC and other members of the rebel group.  Also found in Buenaobra's possession was a piece of paper containing the jumbled tel. no. of Florida Roque, sister of Amelia Roque, aka. "Ka Nelia."  They went to the address on 8/13/88 and arrived at the place about 11 AM.  After identifying themselves as military agents and after seeking permission to search the place, w/c was granted, the military agents conducted a search in the presence of the occupants of the house and the barangay captain of the place.

            The military found the place to be another safehouse of the NUFC/ CPP.  They found firearms, subversive documents, ledgers, journals, vouchers, among others.  Amelia admitted ownership of the documents seized.

            Roque was brought to the Caloocan City Fiscal for inquest after w/c an info. charging her w/ viol. of PD 1866 was filed.  Another info. for viol. of the Anti-Subversion Act was filed against Roque and also to Buenaobra.

            A petition for HC was filed bef. this Court on behalf of Roque and Buenaobra.  At the hearing, Buenaobra manifested his desire to stay in the PC-INP stockade at Camp Crame, Q.C.  Accordingly, the petition for HC on his behalf is now moot and academic.

 

III

 

            Anonuevo v. Ramos. 

 

            The arrest of Domingo Anonuevo (A) and Ramon Casiple (C) w/o warrant is justified.

            At about 7:30 PM on 8/13/88, A and C arrived at the house of RC w/c was still under surveillance.  The military noticed bulging objects on their waist lines.  When frisked, the agents found them to be loaded guns.  They were asked to show their permit or license to possess or carry firearms and ammunitions but they could not produce any.  Hence, they were brought to PC HQ for investigation.

            At the PC stockade, A was identified as "Ka Ted," and C as "Ka Totoy" of the CPP by their former comrades.

            On 8/15/88, an info. charging them w/ viol. of PD 1866 was filed bef. RTC-Pasig.  On 8/24/88, a petition for HC was filed bef. this Court.

 

HELD:  The petitioner's claim that they were unlawfully arrested bec. there was no previous warrant, is w/o merit.  The records show that they were carrying unlicensed firearms and ammunitions in their person when apprehended.

            There is also no merit in the contention that the info. filed against them are null and void for want of prel. inv.  The filing of an info., w/o a prel. inv., having been first conducted, is sanctioned by Rule 112, Sec. 7, ROC.

            Petitioners refused to sign a waiver of the provisions of Art. 125, RPC.  Nor did petitioners ask for prel. inv. after the informations had been filed against them in court.

 

IV

 

            Ocaya v. Aguirre.

 

            On 5/12/88, agents of the PC Intelligence and Investigation Division of Rizal PC-INP Command, armed w/ a search warrant, conducted a search of a house located at Marikina Green Heights, believed to be occupied by Benito Tiamson, head of the CPP-NPA.   In the course of the search, Ocaya arrived in a car driven by Danny Rivera.  Subversive documents and several rounds of ammunitions for a .45 cal. pistol were found in Vicky Ocaya's car.  They were brought to the PC HQ for investigation, when O. could not produce any permit or authorization to possess the ammunition, an info. charging her w/ viol. of PD 1866 was filed w/ RTC-Pasig.  Rivera was released from custody.

            On 5/17/88, a petition for HC was filed on behalf of these 2.

 

HELD:  Vicky O. was arrested in flagrante delicto so that her arrest w/o warrant is justified.  No. prel. inv. was conducted bec. she was arrested w/o a warrant and she refused to waive the provisions of Art. 125 of the RPC, pursuant to R112, Sec. 7, ROC.

 

V

 

            The petitioners Ocaya, Anonuevo, Casiple and Roque claim that the firearms, ammunitions and subversive documents alleged to have been found in their possession, when arrested, did not belong to them, but were planted by the military to justify their illegal arrest.

            The petitioners, however, have not introduced any evidence to support their claim.  On the other hand, no evil motive or ill will on the part of the arresting officers that could cause the said officers in these cases to accuse the petitioners falsely, has been shown.

            As pointed out by the Sol-Gen, the arrest of the petitioners is not a product of a witch hunt or a fishing expedition, but the result of an in-depth surveillance of NPA safehouses pointed no less than by former comrades of the petitioners.

VI

 

            Espiritu v. Lim.

 

            Deogracias Espititu is the Gen. Sec. of PISTON.  Petitioner claims that at about 5 AM of 11/23/88, while he was sleeping in his home located at Sta. Mesa, Mla., he was awakened by his sister who told him that a group of persons wanted to hire his jeepney.  When he went down to talk to them, he was immediately put under arrest.  When he asked for the warrant, the men bodily lifted him and placed him in their owner type jeepney.  He demanded that his sister be allowed to accompany him, but the men did not accede to his request.

            An info. charging him w/ viol. of Art. 142, RPC (Inciting to sedition) was filed against him.

            In the afternoon of 11/22/88, during a press-con at the NPC "Deogracias E. through tri-media was heard urging all drivers and operators to go on nationwide strike on 11/23/88 xxx."

            Policemen waited for petitioners outside the NPC in order to investigate him, but he gave the lawmen his slip.  He was next seen at about 5 PM at a gathering of drivers and sympathizers, where he was heard as saying,

            "Bukas tuloy and welga natin ... hanggang sa magkagulo na."

            Since the arrest of the petitioner w/o warrant was in accordance w/ the provisions of R 113, Sec. 5 (b), ROC, and the petitioner is detained by virtue of a valid info. filed w/ the competent court, he may not be released on HC.            
    

VII

 

            Nazareno v. Station Commander.

 

            At about 8:30 AM of 12/14/88, one Romulo Bunye II was killed by a group of men in Alabang, Muntinglupa, MM.  One of the suspects in the killing was Ramil Regala who was arrested by the police on 12/28/88.  Upon questioning, Regala pointed to Nazareno as one of his companions in the killing of Bunye II.  In view thereof, the officers, w/o warrant, picked up Nazareno and brought him to the police HQ for questioning.

            xxx

            On 2/1/89, the presiding judge of the RTC-Binan, Laguna, issued a resolution denying the petition for HC, it appearing that said Narciso Nazareno is in the custody of the respondents by reason of an info. filed against him w/ the RTC-Mkti., MM.

 

HELD:  The arrest of Nazareno was effected by the police w/o warrant pursuant to Sec. 5 (b), R 113, ROC, after he was positively implicated by his co-accused; and after investigation by the police.

            The obligation of an agent of authority to make an arrest by reason of a crime, does not presuppose as a necessary requisite for the fulfillment thereof, the indubitable existence of a crime.  For the detention to be perfectly legal, it is sufficient that the agent or person in authority making the arrest has reasonably sufficient grounds to believe the existence of an act having the characteristic of a crime and that the same grounds exist to beleive that the person sought to be detained participated therein."  (Peo. v. Ancheta.)

 

VIII

 

            In all the petitions here considered, criminal charges have been filed in the proper courts against the petitioners.  The rule is that if a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge, and that the court or judge had jurisdiction to issue the process or make the order, or if such person is charged before any court, the writ of HC will not be allowed.  (Sec. 4, R 102, ROC.)

 

            On the Ilagan Doctrine.

 

            As the Court sees it, re-examination or re-appraisal, w/ a view to its abandonment, of the Ilagan case doctrine is not the answer.  The answer and the better practice would be, not to limit the function of HC to a mere inquiry as to w/n the court w/c issued the process, judgement or order of commitment, or bef. whom the detained person is charged, had jurisdiction or not to issue the process, judgment or order or to take cognizance of the case, but rahter, as the court itself stated in Morales, Jr. v. Enrile, in all petitions for HC, the court must inquire into every phase and aspect of petitioner's detention-- "from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition;" and "only after such a scrutiny can the court satisfy itself that the due process clause of our Constitution in fact has been satisfied."  RAM.

 

 

Umil v. Ramos, 202 SCRA 251

 

PETITION SEEKING SEPARATE MOTIONS FOR RECONSIDERATION FROM THE COURT'S DECISION PROMULGATED ON 9 JULY 1990

 

            The decision (on July 9, 1990) did not rule that mere suspicion that one is a CPP or NPA is a valid ground for his arrest w/o warrant.

 

            We find no merit in the motions for reconsideration.

 

            Rolando Dural.--  His arrest w/o warrant is justified as it can be said that, w/in the contemplation of Sec. 5 (a), R 113, ROC, he was committing an offense, when arrested, bec. Dural was arrested for being a member of the NPA, an outlawed org., where membership is penalized, and for subversion w/c, like rebellion is, under Garcia v. Padilla, a continuing crime.

            Dural did not cease to be, or become less of a subversive, FOR PURPOSES OF ARREST, simply bec. he was, at the time of arrest, confined in the St. Agnes Hospital.  Dural was identified as one of several persons who, the day before his arrest, w/o warrant, had shot 2 CAPCOM policemen in their patrol car.  Dural, given another opportunity, would have shot or would shoot other policemen, anywhere as agents or representative of an organized govt.  It is in this sense that subversion and rebellion are anchored on an ideological base w/c compels the repetition of the same acts of lawlessness and violence until the overriding objective of overthrowing organized govt is attained.

            His arrest was based on "probable cause."

            Sec. 5, R 113, ROC, requires 2 conditions for a valid arrest w/o warrant:  (1)  the person to be arrested has just committed an offense and (2)  the person arresting has personal knowledge of facts indicating that the person to be arrested is the one who committed the offense.

            It has been ruled that personal knowledge of facts in arrests w/o warrant must be based upon probable cause, w/c means on actual belief or reasonable grounds of suspicion. 

            The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested.  A reasonable suspicion therefore must be founded on probable cause, coupled w/ good faith on the part of the peace officers making the arrest.    

            Said confidential info. received by the arresting officers, to the effect that an NPA was being treated for a gunshot wound was based on actual facts and supported by circumstances sufficiently to engender a belief that an NPA member was truly in said hospital.  The actual facts supported by circumstances are:  (1)  the day bef., or on 1/31/88, 2 CAPCOM soldiers were actually killed in Bagong Bo., Caloocan City by 5 "sparrows" including Dural; (2)  a wounded person listed in the hospital records as "Ronnie Javelon" was actually then being treated in said hospital for for a gunshot wound; (3)  "Ronnie Javelon" and his address entered in the hospital records were fictitious and the wounded man was in reality Dural.

 

            On good faith.--  The peace officers who arrested Dural are deemed to have conducted the same in good faith, considering that law enforcers are presumed to regularly perform their official duties.

            A few days after Dural's arrest, an info. charging him w/ Double murder w/ assault against agents of persons in authority was filed in RTC-Caloocan City.  He was placed under judicial custody.  On 8/31/88, he was convicted and sentenced to reclusion perpetua.

 

            As to A. Roque., W. Buenaobra, D. Anonuevo, R.. Casiple & V. Ocaya, their arrests, w/o warrant, are also justified.  They were searched pursuant to a warrant issued by a court of law and were found w/ unlicensed firearms, explosives and/ or ammunitions on their persons.  They were, therefore, caught in flagrante delicto w/c justified their outright arrest w/o warrant under Sec. 5 (a), R113, ROC.  A few days after their arrests, informations were filed in court against said petitioners placing them w/in judicial custody and disposition.  Buenaobra's petition is moot bec. he had chosen to remain in detention.

            The reason which compelled the military agents to make the arrests w/o warrant was the info. given to the military that 2 safehouses (one occupied by RC and the other by Benito Tiamson) were being used by the CPP/ NPA for their operations, w/ info. as to their exact location and the names of RC and BT as residents and occupants thereof. 

            And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque, Buenaobra, Anonuevo and Casiple), w/c confirmed the belief of the military that the info. they had received was true and the persons to be arrested were probably guilty of the commission of certain crimes:  first, the search warrant was duly issued to effect the search of the Constantino safehouse; second, found in the safehouse was a person named RC, who admitted that he was a ranking member of the CPP, and found in his possession were unlicensed firearms and communist equipment; third, at the time of their arrests, in their possession were unlicensed firearms, ammunitions, and/ or subversive documents, and they admitted ownership thereof as well as their membership in the CPP/ NPA.  And then shortyly after their arrests, they were positively identified by their former comrades as CPP/ NPA members.

            An arrest is in the nature of an administrative measure.  The power to arrest w/o warrant is w/o limitation as long as the requirements of Sec. 5, R 113 are met.  This rule is founded on an overwhelming public interest in peace and order in our community.

            "xxx  The legality of the detention does not depend upon the fact of the crime, but xxx upon the nature of the deed, wherefrom such characterization may reasonably be inferred by the officer or functionary to whom the law at the moment leaves the decision for the urgent purpose of suspending the liberty of the citizen."  (US v. Sanchez.)

 

            ESPIRITU was arrested w/o warrant, not for subversive or any "continuing offense," but for uttering the words "Bukas tuloy ang welga natin xxx hanggang sa magkagulo na" w/c in the perception of the arresting officers, was inciting to sedition.

 

            Many persons differ as to the validity of such perception and regard the language as falling w/in free speech guaranteed by the Consti.  But, the authority of the peace officers to make the arrest, w/o warrant, at the time the words were uttered, or soon thereafter, is still another thing.  In the balancing of authority and freedom, w/o obviously becomes difficult at times, the court, has in this case, tilted the scale in favor of authority but only for purposes of the arrest (not conviction.)

 

            Supervening events made this case moot and academic.  for E. had bef. arraignment asked the court a quo for re-investigation, the peace officers did not appear.  Case against E. has been provisionally dismissed and his bail cancelled.

 

            NAZARENO'S ARREST.--  Although the killing of Bunye II occured on 12/14/88, while Nazareno's arrest w/o warrant was made only on 12/28/88 or 14 days later, teh arrest falls under Sec. 5 (b), R113, since it was only on 12/28/88 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be made promptly, even w/o a warrant (after the police were alerted) and despite the lapse of 14 days to prevent possible flight.

            Nazareno has since been convicted by the court a quo for murder and sentenced to reclusion perpetua.

 

ADMISSIBLITY OF EXTRA-JUDICIAL ADMISSION.

 

            These admissions strengthen the Court's perception that truly the grounds upon w/c the arresting officers based their arrests w/o warrant, are supported by probable cause, i.e., that the persons arrested were probably guilty of the commission of certain offenses, in compliance w/ Sec. 5, R 113, ROC.  To note these admissions, on the other hand, is not to rule that the persons arrested are already guilty of the offenses upon w/c their warrantless arrests were predicated.  The task of determining the guilt or innocence of persons arrested w/o warrant is not proper in a petition for HC.  It pertains to the trial of the case on the merits.

 

GARCIA-PADILLA V. ENRILE and ILAGAN V. ENRILE:

 

            This Court finds no compelling reason at this time to disturb the same, particularly in the light of prevailing conditions where national security and stability are still directly challenged perhaps, w/ greater vigor from the communist rebels.  What is important is that every arrest w/o warrant be tested as to its legality via habeas corpus proceedings.  RAM.  

 

                                                (2)  Illegal Possession of guns or drugs

 

 

People v. Linsangan, 195 SCRA 784

 

F:         Accused Linsangan was arrested after a “buy-bust” operation.  The two marked ten-peso bill were retrieved from him.  He was asked to sign his name on the two marked bills.  The ten handrolled cigarette sticks confiscated from the accused were submitted for examination.  After finding these positive for marijuana, a case was filed for violation of the Dangerous Drugs Law.  Linsangan denied the charge.  The trial court found Linsangan guilty.  Upon appeal, one of the assertions of Linsangan was that the trial court erred in not holding that when the policemen required him to initial the marked bills, they violated his constitutional right to counsel, to remain silent, and not to incriminate himself while under custodial investigation.

 

ISSUE:  WHETHER OR NOT THERE WAS A VIOLATION OF THE ACCUSED’S CONSTITUTIONAL RIGHTS WHEN HE WAS MADE TO SIGN THE MARKED BILLS.

 

HELD:  Although the accused was not assisted by counsel when he initialed the P10-bills that the police found tucked in his waist, his right against self-incrimination was not violated for his possession of the marked bills did not constitute a crime; the subject of the prosecution was his act of selling marijuana cigarettes.  His conviction was not based on the presence of his initials on the marked bills, but on the fact that the trial court believed the testimony of the policemen that they arrested him while he was actually engaged in the selling marijuana cigarettes to a member of the arresting party. The trial court gave more credence to their categorical declarations than to the appellant’s denials.  That is as it should be for as law enforcers, they are presumed to have performed their official duties in a regular manner.  Their task of apprehending persons engaged in the deadly drug trade is difficult enough without legal and procedural technicalities to make it doubly so.  Bam.

 

 

                        11.  Immunity from arrest of members of Congress

 

            Art. VI, Sec. 11.  A Senator or Member of the House shall, in all offenses punishable by not more than six (6) years imprisonment (prision corre­cional), be privileged from arrest while Congress is in session.  xxx

 

 

 

            B.  Rights of Persons under custodial interrogation

 

            Art. III, Sec. 12.  (1)  Any person under custodial investigation for the commission of an offense, shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice.  If the person cannot afford the services of counsel, he must be provided with one.  These rights cannot be waived except in writing and in the presence of counsel. 

            (2)  No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him.  Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. 

            (3)  Any confession or admission obtained in violation of this or sec. 17 hereof, shall be inadmissible in evidence against him.

            (4)  The law shall provide for penal and civil sanctions for violations of this section, as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. 

 

 

 

            Rep. Act No. 7438

 

AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING, AND INVESTIGATING OFFICERS AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF.

 

            Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

 

            Section 1.  Statement of Policy.  ---  It is the policy of the State to value the dignity of every human being and guarantee full respect for human rights.

 

            Sec. 2.  Rights of Persons Arrested, Detained, or under Custodial Investigation;  Duties of Public Officers.  ---  (a)  Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel.

            (b)  Any public officer or employee, or anyone acting under his order or in his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation.  If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer.

            (c)  The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever.

            (d)  Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such persons in the presence of his counsel or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him;  otherwise, such extrajudicial confession shall be inadmissible in evidence in any proceeding.

            (e)  Any waiver by a person arrested or detained under the provisions of Art. 125 of the RPC, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel;  otherwise such waiver shall be null and void and of no effect.

            (f)  Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national NGO duly accredited by the CHR or by any international NGO duly accredited by the Office of the President.  The person's "immediate family" shall include his or her spouse, fiance or fiancee, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.

            As used in this Act, "custodial investigation" shall include the practice of issuing an "invitation" to a person who is under investigation in connection with an offense he is supected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law.

 

            Sec. 3.  Assisting Counsel.  ---  Assisting counsel is any lawyer, except those directly affected by the case, those charged with conducting preliminary investigation or those charged with the prosecution of crimes.

            The assisting counsel other than the government lawyers shall be entitled to the following fees:

            (a)  The amount of P150.00 if the suspected person is chargeable with light felonies;

            (b)  The amount of P250.00 if the suspected person is chargeable with less grave or grave felonies;

            (c)  The amount of P350.00 if the suspect is chargeable with a capital offense.

            The fee for the assisting counsel shall be paid by the city or municipality where the custodial investigation is conducted, provided that if the municipality or city cannot pay such fee, the province comprising such municipality or city shall pay the fee:  Provided, That the Municipal or City Treasurer must certify that no funds are available to pay the fees of assisting counsel before the province pays said fees.         In the absence of any lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with the provision of Art. 125 of the RPC.

 

            Sec. 4.  Penalty Clause.  ---  (a)  Any arresting public officer or employee, or any investigating officer who fails to inform any person arrested, detained or under custodial investigation of his right to remain silent and to have competent and independent counsel preferably of his own choice, shall suffer a fine of P6,000.00 or a penalty of imprisonment of not less than 8 years but not more than 10 years, or both.  The penalty of perpetual absolute disqualification shall also be imposed upon the investigating officer who has been previously convicted of a similar offense.

            The same penalties shall be imposed upon a public officer or employee, or anyone acting upon orders of such investigating officer or in his place, who fails to provide a competent and independent counsel to a person arrested, detained or under custodial inevstigation for the commission of an offense if the latter cannot afford the services of his own counsel.

            (b)  Any person who obstructs, prevents or prohibits any lawyer, any member of the immdediate family of a person arrested, detained or under custodial investigation, or any medical doctor or priest or religious minister or by his counsel, from visiting and conferring privately chosen by him or by any member of his immediate family with him, or from examining and treating him, or from minitering to his sppiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than 4 years nor more than 6 years, and a fine of P4,000.00.

            The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be necessary to secure his safety and prevent his escape.

 

            Sec. 5.  Repealing Clause.  ---  RA 857, as amended, is hereby repealed.  Other laws, PDs, EOs or rules and regulations, or parts thereof inconsistent with the provisions of this Act are repealed or modified accordingly.

 

            Sec. 6.  Effectivity.  ---  This Act shall take effect 15 days following its publication in the OG or in any daily newspaper of general circulation in the Philippines.

 

            Approved, April 27, 1992.

 

 

Source:  Miranda v. Arizona, 384 U.S. 436 (1966)

 

            According to Chief Justice Warren, when a defendant is thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures, where compulsion is forcefully potential and his will is likely to be subjugated, the officers must undertake to afford proper safeguards by the reading of the "Miranda rights" at the outset of the investigation to ensure that the statements made are truly the product of free choice.

 

            Any person under custodial or police investigation has the right to be informed of the following rights:

 

1.  Right to remain silent

 

            a)  To make him aware of it.

            b)  To overcome the inherent pressure of the interrogating atmosphere

            c)  To show the individual that his interrogators are prepared to recognize his privilege should he choose to invoke his right.

 

2.  Right to be reminded that if he waives his right to remain silent, anything he says can and will be used against him.

 

            a)  To warn him of the consequences of waiving his right to remain silent.

            b)   To make him aware that this is an adversary system, and that the police are not acting in his interest.

 

3.  Right to counsel before and during the interrogation

 

            a)  To mitigate the dangers of untrustworthiness in his testimony, since the inherent pressures initially overcome by the right to remain silent may again run unless coupled with the right to counsel.

            b)  To lessen the possibility of coercion by the police.

 

4.  Right to be reminded that if he cannot afford counsel, then one will be provided for him by the state.

 

            a) To inform him that if he does not have counsel or cannot afford one, he does not have to defend himself alone.

            b)  To inform him that his poverty is no reason why he should lose his right to counsel.

 

            (The reading of these rights is no less indispensable even if the person arrested is a prominent Constitutional lawyer.  Although he may already know these rights, the purpose is not so much to inform him, as to assure him that his interrogators are willing to respect his rights amidst the pressure of custodial investigation.)

 

            The reading of these rights is required during "custodial investigation".

 

A police investigation consists of 2 stages:

 

            1)  "General exploratory investigation" -  when the investigation consists merely of general questions to find out who might be the culprit, but without being directed at anyone's guilt in particular.  At this stage, the Miranda rule is not yet applicable; otherwise, people who could otherwise explain their innocence would be arrested.

 

            2)  "Custodial investigation"  -  when the investigation now focuses on the guilt of a person such that he is no longer allowed to leave the premise.  It is at this stage that the Miranda ruling is necessary, since the purpose of the interrogation is to evince evidence that can be used to prosecute the person.

 

            For instance, when A, a policeman, sees X running with a stained knife away from an apparently dead man, he can rung after X and having grabbed him, ask him for an explanation as to what he saw without reading his Miranda rights.  But once A arrests X and starts interrogating him in the police precinct, then his rights must now be read, for there can only be one purpose to the questioning, and that is to elicit evidence to be used to prosecute him.

 

Mendoza, The Right to Counsel During Custodial Investigations, 2 Law Rev. No. 10, 2 (1988); 61 Phil. LJ 409

 

I.  RIGHT TO COUNSEL WAS DEVELOPED AS PART OF PROTECTION AGAINST INVOLUNTARY CONFESSIONS.

 

            Since the introduction of the American accusatorial system of criminal procedure in the Phils., the rule has been that involuntary confessions are inadmissible in evidence against the accused.

            The question is on whom the burden of proof is placed.  The early rule placed the burden of proving that the confession was voluntary and, therefore, admissible in evidence, on the prosecution.  (Sec. 4, Act No. 619.)  It was held that a confession not shown to have been voluntarily given could be objected to at any stage of the proceedings, even for the first time on appeal in the SC.

            Act No. 619 was later repealed by the Admin. code of 1916, w/c placed the burden of proof on the accused to show that his confession was involuntary.  Under the new rule, it was sufficient that the confession was given under conditions w/c accredit prima facie its admissibility.

            In 1953, a further change took place when the SC held in Peo. v. de los Santos that "A confession, to be repudiated, must not only be proved to have been obtained by force and violence, but also that it is false or untrue, for the law rejects the confession when, by force or violence or intimidation, the accused is compelled against his will to tell a falsehood, not even when such force and violence he is compelled to tell the truth.  In the later case of Peo. v. Villanueva, the Court stated "the admissibility of that kind of evidence depends not on the supposed illegal manner in w/c it is obtained but on the truth or falsity of the facts or admission contained therein.

            The illegality of the means used in obtaining evidence does not affect its admissibility (Moncado v. People's Court.)

 

THE EFFECT OF THE EXCLUSIONARY RULE IN SEARCH AND SEIZURE CASES

 

            The adoption in 1967 of the exclusionary rule in search and seizure cases (Stonehill v. Diokno) worked a parallel in the law of confession.  W/o expressly overruling its decision in de los Santos and Villanueva, the Court, in Peo. v. Urro, went back to the former rule that involuntary or coerced confessions, regardless of their truth, are null and void.  xxx  Involuntary or coerced confessions obtained by law, w/c proscribes the use of such cruel and inhuman methods to secure confessions.  xxx

            Indeed, in the US, it is said that an "unconstitutional coercion will render inadmissible even the most unquestionably true inculpatory statements."  xxx  This is not bec. such confessions are unlikely to be true but bec. the methods used to extract them offend an underlying principle in the enforcement of our criminal law:  that ours is an accusatorial and not an inquisitorial system --  a system in w/c the State must establish guilt by evidence independently and freely secured and not by coercion prove its charge against an accused out of his own mouth xxx."  (Rogers v. Richmond, J. Frankfurter.)

 

THE MIRANDA RULE

 

            The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the def. unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.  By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken to custody or otherwise deprived of his freedom of action in any significant way. xxx

 

II.  IN TURN, MIRANDA WARNINGS WERE DEVISED AS MEANS OF SECURING THE RIGHT TO COUNSEL.

 

            Miranda v. Arizona requires certain warnings to be given by police interrogators bef. a person in custody may be interrogated, w/c have been adopted by the Phil. SC:

            1.  The person in custody must be informed in clear and unequivocal terms that he has a right to remain silent.  The purpose is to apprise him of his privilege not to be compelled to incriminate himself, to overcome the inherent pressures of the interrogation atmosphere, and to assure the individual that his interrogators are prepared to recognize his privilege, should he choose to exercise it.

            2.  The person in custody must be warned that anything he will say can and wilol be used against him.  This warning is intended to make him aware not only of the privilege but also of the consequences of foregoing it.

            3.  Since the circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators,  it is indispensable that he has the assistance of counsel.

 

 

THE CUSTODIAL PHASE OF INTERROGATION

 

            At what stage of the police interrogation must the warnings be given?  The Consti. does not state at what stage of the interrogation process they must be made.  but in Miranda, the court specified that it is only at the custodial phase of the interrogation that its ruling applied.  As the Court indicated in Escobedo v. Illinois, it is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogation that leads itself to eliciting incriminating statements that the rule begins to operate.

 

            In Gamboa v. Cruz, the accused was arrested, w/o a warrant, for vagrancy.  He was taken to police precint no. 2 in Mla.  The next day, he was included in a police line-up of 5 detainees and was pointed to by the complainant as a complanion of the main suspect on the basis of w/c the accused was ordered to stay and sit in front of the complainant, while the latter was interrogated.  The accused was then charged w/ robbery.  The accused moved to dismiss the case against him on the ground that he had been denied the assistance of counsel during the line-up.  His motion was denied.  Hence, this petition for certiorari.  

 

HELD:  The right to counsel attaches only upon the start of an interrogation, when the police officer starts to ask questions designed to elicit info. and/ or confessions or admissions from the accused.  As the police line-up in this case was not part of the custodial inquest, the petitioner was not entitled to counsel xxx.

 

YAP, J., dissenting:  The investigation had commenced the moment the accused was taken from the police line-up and made to sit in front of the complainant, while the latter made a statement to the police.  The right to counsel must be afforded the accused the moment he is under custodial investigation and not only when a confession is being exacted from him.

 

SARMIENTO, J w/ GANCAYCO, dissenting: The accused was in custody so that his confrontation w/ the complainant became adversarial and not informational.  While a police line-up is not per se critical, bec. in most cases, it is merely part of evidence-gathering process, in this case, the fact that he stood charged w/ an offense (vagrancy) and had been detained made the case different.

CRUZ, dissenting:  He pointed out the lack of showing that improper suggestions had been made by the police to influence the witness in the identity of the accused.

 

III.  WAIVER OF RIGHTS.

 

            It is important to distinguish bet. the waiver of rights and the waiver of warnings.  The first can be made provided that the waiver is "voluntary, knowing and intelligent" but the second cannot.  As the warnings are the means of insuring that the suspect is apprised of his rights so that any subsequent waiver of his rights can be "voluntary, knowing and intelligent," it is obvious that there can be no valid waiver of the warnings.  A waiver of rights will not be presumed.

 

            1.  With respect to confessions obtained bef. Jan. 17, 1973, the rule that the suspect must be warned that he has a right to remain silent and to have the assistance of counsel does not apply. such confessions, even though presented in evidence in a trial after the effectivity of the 1973 Consti., are admissible, provided they are voluntary, using the traditional test of voluntariness.

           

            2.  With respect to confessions obtained after Jan. 17, 1973, but before March 20, 1985, when the decision of Peo. v. Galit was handed down, the rule is that the voluntariness of a waiver of the rights to silence and to counsel must be determined on a case-to-case basis, taking into account the circumstances under w/c the waiver was made.

 

            3.  With regard to confessions obtained after March 20, 1985 but before Feb. 2, 1987, when the present Consti. took effect, the rule is that a waiver of the rights to remain silent and to the assistance of counsel, to be valid, must be made w/ the assistance of counsel.

 

            4.  With regard to confessions given after Feb. 2, 1987, the present Consti. requires that the waiver to be valid, must be in writing and w/ the assistance of counsel.

 

IX.  THE EXLUSIONARY RULE.

 

            Any confession or admission obtained in violation of this or Sec. 17 hereof shall be inadmissible in evidence against him, the Consti. says.  No distinction is made bet. confession or admission.  Although the previous Consti. spoke of confessions only, I have argued that it was not so limited but that it also embraced uncounselled statements.  For "if a statement made wore in fact exculpatory, it could ... never be used by the prosecution, in fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication."

 

EXCEPTIONS TO THE EXCLUSIONARY RULE

 

            The phrase "for any purpose in any proceeding" conveys the idea that the rule excluding evidence illegally obtained is absolute.  No similar phraseology is used in the exclusionary rule implementing the Miranda rule.  Does this mean there can be instances, where uncounselled statements may nevertheless be admissible in evidence, albeit, for a limited purpose?

 

            In Harris v. US, it was held that although a confession obtained w/o complying w/ the Miranda rule was inadmissible for the purpose of establishing in chief the confessor's guilt, it may nevertheless be presented in evidence to impeach his credit.  Petitioner, as a def., in a prosecution for selling heroin, claimed that what he had sold to a police officer was baking powder, as part of the scheme to defraud the purchaser xxx  The shiled provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation w/ prior inconsistent utterance

 

            In New York v. Quarles, the SC created a "public safety" exception to the Miranda rule. xxx.  "There is public safety exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted in evidence."  It held that the warnings were not themselves Constitutional rights but merely "prophylactic" measures to insure the right against self-incrimination.  The Court noted the cost imposed on the public by the rule, namely, that the giving of warnings might deter suspects from answering questions and this might lead in turn to fewer convictions.  It then ruled that the social cost is higher when the giving of warnings might deter suspects from answering questions than are necessary to avert an immediate threat to public safety.  When answers are not actually coerced, this social cost outweights the need for Miranda safeguards.  In such exigent circumstances, police officers must not be made to choose bet. giving the warnings at the risk that public safety will be endangered and withholding the warnings at the risk that probative evidence will be excluded.

 

V.  RETROACTIVITY OF THE NEW RULE.

 

            In Magtoto v. Manguera, the Court held Art. IV, Sec. 20 of the 1973 Consti. inapplicable to confessions given before its effectivity on Jan. 17, 1973 on the ground that the right to counsel and to be informed of such right was new and that to make it retroactive "would have a great unsettling effect on the administration of justice in this country.  VV.

           

 

            In People v.  Duero, 104 SCRA 379 (1981), Duero was convicted of robbery with homicide and was sentenced to death, for killing his grandmother after robbing her.   His conviction was based on the (i) testimony of the chief of police before whom he had voluntarily confessed but which statement he refused to sign; (ii) testimony of his cousin that he had told him of his plan to rob their grandmother, and (iii) testimony of another that he was seen on the stairs of the grandmother's house on the day of the killing.  Note that (i) and (ii) were just circumstantial evidence.  And since the procedure set in the Miranda ruling was not followed when the confession was taken, then there was no valid waiver of the right, and so the evidence was held inadmissible.  Conviction was thus reversed.

 

 

People v. Duero  104 SCRA 379 (1981)

 

F:            Defendant was convicted of robbery with homicide and sentenced to death for the killing of his grandmother after robbing her. His conviction was based on a testimony of the Chief of Police that the defendant voluntarily confessed to him to the killing and robbery, although he refused to sign a statement.

 

HELD:  In Miranda v. Arizona, it was held that in custodial investigation the suspect must be given the following warnings: 1)He must be informed of his right to remain silent, in order to make him aware of the right, to overcome the inherent pressures of interrogation atmosphere, and to assure him that his interrogators are prepared to respect his privilege should he choose to exercise it; 2) He must be warned that anything said can and will be used against him in order to him aware not only of the privilege but also of the consequences of foregoing it; 3) He has a right to counsel and that if is indigent, a lawyer will be appointed to represent him.  These warnings were not given to defendant. His oral confession, therefore is inadmissible.  VV.

 

            In People v. Andag, 96 SCRA 861 (1980), the police admitted that he did not give the Miranda warnings, and although Andao knew his rights, the police said that he could not find a lawyer to counsel the accused during the investigation.  The SC held that it was no excuse that there was no lawyer around, and so the statement made before the police was held inadmissible.

 

 

People v. Andag, 96 SCRA 861 (1980)

 

Confessions of a suspect who was not informed of right to counsel is inadmissible in evidence

 

F:         The accused was convicted of robbery with homicide on purely circumstantial evidence and on the extrajudicial confession signed by him, which he later repudiated as having been extracted by force and intimidation.

 

HELD:  The accused was not afforded his constitutional right to counsel and to be informed of such right during the investigation. Sgt. Vallejos admitted in court that the accused had insisted on having a lawyer during the investigation but he was unable to secure a lawyer because there was no one available. This excuse is unacceptable. VV.

 

 

BARLONGAY CASES:

 

People v. Bernardo, 220 SCRA 31

 

F:         Bernardo and his co-accused were convicted of the crime of Kidnapping for Ransom. Bernardo assailed the admissibility of the statement given by him to the media regarding the crime as evidence against him.

 

RULING: Bernardo's culpability is shown by his spontaneous statement given to GMA 7 reporters Jessica Sojo wherein he tried to justify his ungratefulness to his employer whom he kidnapped. This was made not as part of the custodial investigation but as the accused's accomodation to media questioning and is thus admissible in evidence. The fact that the tape was edited with commentaries does not erase the reality that such declaration came out freely from Bernardo's own lips.  Charo.

 

 

People v. Jungco, 186 SCRA 714

 

F:         Jungco and several others, appellants herein,  were charged, tried and convicted with the crime of Robbery with Homicide. In convicting the accused, the trial court relied heavily on the extrajudicial confessions executed by them and the pictures taken during the reenactment of the crime.

                Appellants contend that the said extrajudicial confessions are inadmissible in evidence because they were extracted from them during the custodial investigation without the assistance of counsel and after they had been subjected to different forms of maltreatment, threats and intimidation.

 

ISSUE: W/N the evidence were admissivble.

 

RULING: NO. The Court is convinced after going over the records that the extrajudicial confessions in question are inadmissible in evidence, the same having been executed by appellants during custodial investigation without the assistance of counsel, particularly when the confessants manifested the waiver of their right to counsel. The prevailing rule is still the one laid down in People v. Galit. (Note that this case was decided on June 22, 1985.)

            The Court also finds that the pictures taken during the reenactment of the crime, are inadmissible since the reenactment was based upon the defendants' inadmissible extrajudicial confessions. Pictures re-enacting a crime which are based on an inadmissible confession are themselves inadmissible. Charo.

 

 

People v. Balisteros, 237 SCRA 499

 

F:         Nilo Avestros, Salvador Balisteros and Ernesto Galvante were charged with murder for the killing of one Romeo Abad on August 16, 1991 in Pandi, Bulacan.  Upon arraignment, the 3 accused pleaded not guilty.  During the trial, the prosecution moved for the exclusion ofaccused Galvante from the information for murder so that he could become a state witness as particeps minimis. The Court granted the motion.  It eventually found Balisterois and Avestro guilty as charged.

                Upon appeal, appellant contended the alleged violation os Sec. 12, Art. III of the Constitution, when in accordance with the present rule for the qualification of a state witness,  Galvante executed a sworn statement wherein he categorically admitted his guilt but without the assistance od counsel and in the presence of the 2 brothers of the victim and counsel of the plaintiff.

 

ISSUE:  W/N there was a constitutional violation of Galvante's right to counsel.

 

HELD:  NO. 

            Appellant cannot invoke the constitutional provision that a confession taken in violation of Sec. 12 and Sec. 17, Art. III of the 1987 Constitution  " shall be inadmissible in evidence against him", meaning the confessant.  This objection can be raised only by the confessant whose rights have been violated as such right is personal in nature.

            Also, repeating his confession in Court, Galvante converted it into a judicial confession which, having been allowed by the trial court, eliminated the need  for assistance of counsel which is required in extra-judicial confession (EJC).  Furthermore, even in EJC, which under jurisprudential doctrines have been held to be generally binding upon the confessant and not against his co-accused, Galvante's confession would readily fall into the exceptions to that rule since appellants are being charged as co- conspirators and said confession is used only as corroborating evidence, or as circumstantial evidence to show the probability of participation by the co-conspirator, or is corroborated by other evidence of record.  Suzette.

 

 

People v. Marra, 236 SCRA 565

 

F:         Tandoc was shot.  The accused was identified by the companion of the victim.  The police located the accused in a restaurant after  a security guard pointed him out after being described by the police.  The police asked the accused if he has a gun, since he claimed to be a security guard.  When he answered in the affirmative, the police asked him if they could look at it.  The parties went to the accused’s house where the police were shown the said gun.  When asked by the police if he has fired the gun since there was an empty shell, he replied in the negative.  The police then asked him if he killed the victim.  At first he vehemently denied killing the victim but later he admitted that he shot the victim, and claimed self-defense.  The police brought the accused to the station.  He was subsequently charged with and convicted of murder.

 

ISSUE:  Whether or not the accused was under custodial investigation when he admitted that he shot the victim.

 

RULING :  NO.

            Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.  It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate.

            In the case at bar, appallant was not under custodial investigation when he made the admission.  There was no coercion whatsoever to compel him to make such a statement.  He could have refused to answer questions from the very start when the police requested that they all go to his residence.  The ploice inquiry had not yet reached a level wherein they considered him as a particular suspect.  Thus, compliance with the constitutional procedure on custodial investigation is not applicable in this case.  Bam.

 

 

Kimpo v. Sandiganbayan, 232 SCRA 53

 

F:         Kimpo, as a public official, was charged with and convicted of Malversation by the Sandiganbayan.  Among the evidence presented by the Prosecution were the Report of an audit-examination and a Statement of Accountability for Accountable Forms without Money Value, and a Reconciliation Statement of Accountability.  Kimpo objected to the admission of said evidence on the ground of violation of Constitutional Rights Under Custodial Investigation.

 

ISSUE:   Whether or not there was a violation of the invoked Constitutional Right

 

RULING:  No.  The evidentiary documents admitted are official forms  prepared and accomplished in the normal course of audit regularly conducted by the Commission on Audit.  Kimpo, not being at the time under investigation for the commission of a criminal offense, let alone under custodial investigation, clearly cannot be said to have been deprived of the constitutional prerogatives he invokes.  Bam.

 

 

People v. Tranca, 235 SCRA 455

 

F:         Accused Tranca was arrested in a buy-bust operation, where a P100 bill dusted with flourescent powder was used.  The accused was brought by the police to Camp Crame, where the Chemist exposed the bill  and the person of the accused to ultraviolet radiation.  Flourescent powder was discovered on the bill, on the hands of the accused, on his face and his shorts.  The results of the examination were contained in a report.  Accused contends that the right of the accused against self-incrimination was violated when he was made to undergo an ultraviolet ray examination.  He also contends that the Chemist failed to inform him of his right to counsel before subjecting him to the examination.

 

ISSUE:  Whether or not there were violations of the accused’s rights against self-incrimination and to be informed of his right to counsel when under custodial investigation.

 

RULING:  NO. What is prohibited by the constitutional guarantee against self-incrimination is the use of physical or moral compulsion to extort communication from the witness, not an inclusion of his bidy in evidence, when it may be material.  Nor can the subjection of the accused’s body to ultraviolet radiation, in order to determine the presence of ultraviolet powder, be considered a custodial investigation so as to warrant the presence of counsel.  Bam. 

 

 

People v. Simon,  234 SCRA 555

 

F:         Simon was arrested after a buy-bust operation.  He was charged with and convicted of having violated the Dangerous Drugs law.  He was brought to Camp Olivas and was placed under custodial investigation.  He was apprised of his rights to remain silent, to information and to counsel.  Accused, however, orally waived his right to counsel.  The investigating officer prepared a “Receipt of Property Seized/Confiscated, which accused signed, admitting the confiscation of four tea bags of marijuana dried leaves in his possession.  A Booking Sheet and Arrest Report were prepared by the police, which were signed by accused.

 

ISSUE:  Whether or not the said documents are admissible in evidence.

 

RULING:  NO.  Accused’s conformance to these documents are declarations against interest and tacit admissions of the crime charged.  They were obtained in violation of his right as a person under custodial investigation for the commission of an offense, there being nothing in the records to show that he was assisted by counsel.  Although accused manifested during the custodial investigation that he waived his right to counsel, the waiver was not made in writing and in the presence of counsel, hence whatever incriminatory admission or confession may be extracted from him, either verbally or in writing, is not allowable in evidence.  Besides, the arrest report is self-serving and hearsay and can easily be concocted to implicate a suspect.  (Accused was convicted based on other evidence.)  Bam.

 

 

People v. Bolanos, 211 SCRA 262

 

F:         Bolanos was convicted for Murder.  The victim, Pagdalian was found dead, sustaining stab wounds.  When the policemen inquired about the circumstances of the incident, they were informed that the deceased was with two companions, on the previous night. The accused was apprehended.  In the vehicle where the accused boarded, on his way to the Police Station, Bolanos allegedly admitted that he killed Pagdalian because he was abusive.

 

ISSUE:  Whether or not the admission in the jeep was admissible in evidence.

 

HELD:  The trial court, in admitting the extra-judicial confession of the accused in evidence, violated his Constitutional right to be informed, to remain silent and to have a counsel of his choice, while already in police custody.  Since the extra-judicial confession was the only basis for the conviction of the accused, the trial coust’s judgment was reversed.  Bam.

 

 

People v. Bandula, 232 SCRA 566

 

F:         After he and his wife were individually hogtied and their house ransacked, Atty. Garay was found dead with 3 gunshot wounds .  For his death and the loss of their things  on the occasion thereof,  Bandula, Sidigo, Dionanao, and Ejan were charged in court for robbery with homicide.  On the basis of the extrajudicial confessions (EJC) allegedly made by Bandula and Dionanao during their custodial investigation which the court found to "have all the qualities and have complied with all the requirements of an admissible confession, it appearing from the confession that acussed were informed of their rights under the law regarding custodial investigation and were duly represented by Counsel (Atty. Zerna)", it disregarded the defenses interposed by the accused and convicted Bandula.  The 3 other  accused were acquitted for "insufficiency of evidence".

 

Issue:    W/N the extrajudicial confession of Bandula conformed with the constitutional requisites for its validity, hence admissible in evidence. 

 

HELD:  NO

            From the records, it can be gleaned that when accused Bandula and Dionanao were investigated immediately after their arrest, they had no counsel present.  If at all, counsel came in only a day after the custodial investigation with respect to Dionanao, and 2 weeks later with respect to Bandula.  And counsel who supposedly assisted both accused was Atty. Zerna, the Municipal Attorney of Tanjay, whose interest is admittedly adverse to the accused and who is not an independent counsel.  On top of this, there are telltale signs that violence was used against the accused.  Certainly, these are blatant violations of of Sec. 12, Art III of the 1987 Constitution which protects the rights of the accused during custodial investigation.  Suzette.

 

 

 

                        1.  Miranda rule not applicable to confessions executed before January 17, 1973

 

Magtoto v. Manguera, 63 SCRA 4 (1975)

 

 

 

            In this and other cases (People v. Page, 77 SCRA 342 (1977), People v. Garcia, 96 SCRA 497 (1980), and People v. Ribadajo, 142 SCRA 637 (1986)), the SC ruled that the Miranda rule applies only to confessions obtained after January 17, 1973, the date of effectivity of the 1973 Constitution.  Confessions obtained prior to January 17, 1973 without the reading of the Miranda rights, so long as otherwise voluntary, are admissible in evidence, even if they are actually used after January 17, 1973.

 

            In this case, Magtoto, who was accused of murder, was made to confess without being warned of his Miranda rights in October 1970 while in the custody of the Constabulary.  He was arraigned in November 1972, and tried after January 17, 1973.  The Court admitted the confession, supporting its decision with the history of the Miranda Rule in the Philippines.

 

            Although Art. 125 if the Revised Penal Code, there is a provision that "in every case, the person detained shall be informed of the cause of his detention and shall be allowed , upon request, to communicate and confer at any time with his counsel", the majority in Magtoto v. Manguera ruled that this only conferred on the accused the right to be informed of the charge against him and not the right to counsel.

 

            Then, People v. Jose, (1971), the invocation of the Miranda ruling was rejected by the SC, which held that under the 1935 Constitution, the Miranda-Escobedo ruling (on the need for counsel) was not applicable during custodial investigation, but only during trial (from arraignment to judgment).

 

            It was in reaction to this case, according to the SC in Magtoto v. Manguera, that the 1971 Constitutional Convention expressly adopted the Miranda ruling.

 

            Now, this right cannot be given retroactive effect, continued the Court for it would destabilized the judicial process.  It would be unfair for the prosecution to be told to follow the ruling in People v. Jose, and then to be told later that after 1973 , they can no longer use these confessions for they were invalid all along.

 

            (The dissent of Justice Castro argued that Art. 125 of the RPC made it obligatory on he part of the detaining officer to inform the detainees of his right to counsel before custodial inquest.  Thus, he said, it was error for the Court to say that the Concon granted the right to counsel during custodial investigation only for the first time by adopting the Miranda-Escobedo ruling, for it is possible that the delegates themselves were not aware of the RPC.  As to the Jose ruling, he continued , the part rejecting the Miranda ruling was obiter, since Jose could have been convicted with or without his confession on the strength of Maggie de la Riva's testimony alone.)

 

People v. Ribadajo  142 SCRA 637 (1986)

 

F:         On Nov. 20, 1971, the appellants confessed participation in the slaying of a fellow inmate, Bernardo Catamora, at the New Bilibid Prison. On the basis of their confession, they were found guilty of murder. On appeal, they claimed that their extrajudicial confessions had been obtained by force.

 

HELD:  The proscription against the admissibility of confessions obtained from an accused during the period of custodial investigation, in violation of procedural safeguards, applies to confessions obtained after the effectivity of the 1973 Const. No law gives the accused the right to be so informed before the enactment of the 1973 Const., even of presented after Jan. 17, 1973. That Constitutional guaranty relative to confessions obtained during custodial investigation does not have any retroactive effect.  VV.

 

 

                        2.  Not applicable to res gestae statements

 

People v. Dy, 158 SCRA 111 (1988)

 

 

                        3.  Not applicable to statements given in administrative investigations

 

People v. Ayson, 175 SCRA 216 (1989)

 

            It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the section, namely:

 

            1) the right against self-incrimination  i.e., the right of a person not to be compelled to be a witness against himself  set out in the first sentence, which is a verbatim reproduction of Section 18, Article III of the 1935 Constitution, and is similar to that accorded by the Fifth Amendment of the American Constitution,  and

            2) the right of a person in custodial interrogation, i.e., the rights of every suspect "under investigation for the commission of an offense."

 

            Parenthetically, the 1987 Constitution indicates much more clearly the individuality and disparateness of these rights. It has placed the rights in separate sections. The right against self- incrimination, "No person shall be compelled to be a witness against himself," is now embodied in Section 17, Article III of the 1987 Constitution. The rights of a person in custodial interrogation, which have been made more explicit, are now contained in Section 12 of the same Article III. 

 

Right Against Self-Incrimination

 

            The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding.   The right is NOT to "be compelled to be a witness against himself."  It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry."  It simply secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime.  However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed.

 

            The right against self-incrimination is not self-executing or automatically operational. It must be claimed.  It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time.

 

Rights in Custodial Interrogation

 

            Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of rights. These rights apply to persons "under investigation for the commission of an offense," i.e., "suspects" under investigation by police authorities; and this is what makes these rights different from that embodied in the first sentence, that against self-incrimination which, as aforestated, indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative.

 

            This provision granting explicit rights to persons under investigation for an offense was not in the 1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda v. Arizona,  a decision described as an "earthquake in the world of law enforcement." 

 

            Section 20 states that whenever any person is "under investigation for the commission of an offense"--

 

            1)  he shall have the right to remain silent and to counsel, and to be informed of such right, 

            2)  no force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him;  and

            3)  any confession obtained in violation of these rights shall be inadmissible in evidence. 

 

Miranda rights

 

            He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him.

 

            The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self- incriminating statement without full warnings of constitutional rights." 

 

            The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused persons."  And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."   

 

Rights of Defendant in Criminal Case As Regards Giving of Testimony

 

            In fine, a person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in the matter of his testifying or producing evidence, to wit:

 

            1)  BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing   right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and

 

            2)         AFTER THE CASE IS FILED IN COURT  

 

            a)  to refuse to be a witness;

            b)  not to have any prejudice whatsoever result to him by such refusal;

            c)  to testify in his own behalf, subject to cross-examination by the prosecution;

            d)  WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate him for some crime other than that for which he is then prosecuted.

 

            It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry.  Glynda.

 

 

                        4.  Custodial Phase of Investigation

 

Police Lineups

 

Gamboa v. Cruz  June 27, 1988

 

Police line-up not part of custodial inquest

 

F:         Petitioner was arrested for vagrancy in Manila. The following day, he was included in a police line-up and was identified as one of the suspects in a robbery case. He was later charged with robbery and charged. He moved to dismiss the case on the ground that the conduct of the line-up, without the assistance of counsel, was unconstitutional.

 

HELD:  The police line-up was not part of the custodial inquest, hence, petitioner was not yet entitled, at such stage, to counsel. VV.

 

 

US v. Wade, 388 US 218 (1967)

 

 

BARLONGAY CASES:

 

People v. Hatton, 210 SCRA 1

 

F:         Algrame was stabbed at the back while walking with several companions including Ongue who vaguely recognized  the assailant, describing the latter as a "mestizo." Two days later, Ongue was invited  by the police to identify the suspect in a police line- up. Hatton was pointed by Ongue as the assailant. Hatton alleges that at the time that he was made to stand in the police line-up, he was not assisted by counsel. Hence, his identification therein by Ongue is inadmissble.

 

RULING: When the suspect was brought to the police station for indentification, technically, he was not yet under custodial investigation. Thus, the right to counsel does not yet apply.

            However, there is every reason to doubt the regularity of the identification of the suspect by the witness. During the proceedings in the police station, Ongue identified Hatton  not because he was certain that Hatton was really the assailant but because he was the only mestizo in the station and because he was pointed by the police as the suspect. This cannot be considered as positive identification of the accused by the witness.  Charo.

 

 

People v. Casinillo, 213 SCRA 777

 

F:         Casinillo was convicted of rape. He questioned the police line-up on the ground that the same were conducted without the assistance of counsel and that the accused was not informed of his right to counsel.

 

RULING: The appellant's grievance is misplaced. The trial court's finding as to the identification of the accused did not even consider the said line-ups. Moreover, in People v. Olvis, this Court ruled that, in effect, a police line-up is not encompassed in the Constitutional right against testimonial compulsion and the right to counsel.  Charo.

 

 

People v. Santos, 236 SCRA 686 (May 11, 1993)

 

F:         Glicierio Cupcupin and Alberto Bautista were riding on a jeep driven by the former. Two (2) persons armed with short guns approached the jeep and fired at Cupcupin and Bautista. Cupcupin was hit several itmes in different parts of his body and he died. Bautista was able to run away even as he was being fired upon. The one firing the gun at thim was a man he later identified to be accused Raul Santos. The other one which he saw similary firing his gun was aiming at Cupcupin. He identified the man to be one Mario Morales. Upon the apprehension of accused Bautista picked out from a line-up accused Raul Santos. In another line- up, he also picked out accused Morales.

                Police Aide Victorino Bohol was on duty and directing traffic at the corner of Plaza Rizal and Estrella Streets when he heard gunshots. When he looked around the saw two (2) persons who were holding Cal. 45 pistols firing at persons on board a stainless steel owner jeep. After the arrest of accused Santos, Bohol was called to the police station and through a one-way mirror he was able to identify accused Santos as one of the persons who shot Cupcupin and Bautista. Bohol also gave a sworn statement to the police.

                The trial court found that the accused Raul Santos had been identified positively by the surviving vicitm of the shooting incident  Alberto Bautista, and by the Traffic Aide who had witnessed the execution of the crime  Victorino Bohol.

 

Appellant Santos makes two arguments.

 

1) he complains that he was not afforded his right to counsel in the course of the police line-up, at the police station where he was identified by the prosecution witnesses. The accused contends  that during the police line-up, accused was under custodial investigation, a stage which, per the appellant, began the in­stant the police suspected Santos then had no lawyer present nor was one provided.

 

Ruling:  The argument has no legal basis. In Gamboa v. Cruz, the Court said that there is "no real need to afford a suspect the service of counsel at police line-up,"  a declaration reiterated in People v. Loveria. There is nothing in the record of this case which shows that in the course of the line-up, the police inves­tigators sought to extract any admission or confession from appellant Santos. The investigators did not in fact interrogate appellant Santos during the line-up and he remained silent after he had been identified by Bautista and Bohol.

 

2)  Santos contends that there had been "improper suggestiveness" in the course of the police line-up amounting to an uncounselled confession. In effect, defense counsel claims that Bautista and Bohol were induced by the police investigators to point to ap­pellant Santos as one of the gunmen.

 

Ruling: The record does not show that the police investigators had coached Bautista. What that Court warned against in People v. Acosta,   i.e., against an identification process that was "pointedly suggestive, or generated confidence when there was noen, activated visual imagination, and all told, subverted [a person's] reliablity as [an] eye-witness [..]," has not been successfully shown in the case at bar. Glynda.

 

 

 

                        5.  Tests of Validity of Waiver of Miranda Rights

 

 

                                    a.  Pre-Galit rule (Jan. 17, 1973 to March 20, 1985)

 

            If the waiver was made after January 17, 1973 but before March 20, 1985, the waiver must be (i) voluntary, (ii) knowing, and (iii) intelligent.

 

No valid waiver.

 

People v. Caguioa  95 SCRA 2 (1980)

 

Right to counsel may be waived provided the waiver is voluntary, knowing and intelligent

 

F:         Respondent Paquito Yupo was accused of murder in the CFI of Bulacan. The prosecution presented Corporal Conrado Roca of the Meycauayan Police who identified a statement of the accused during a police interrogation and his alleged waiver of the right to remain silent and to counsel. When Roca was questioned on the incriminating answers in the statement, the defense objected, contending that Yupo's statement was given without the assistance of counsel. Respondent Judge sustained the objection on the ground that the right to counsel cannot be waived.

 

HELD:  The right to counsel during custodial interrogation may be waived provided the waiver is made intelligently and voluntarily, with full understanding of its consequences. In this case, the statement made only a perfunctory opening question, after informing the suspect that he was under investigation, that he had a right to counsel and that anything he said could be used for or against him and after asking whether he was willing to answer questions and he answered "yes." The statement was in Tagalog which the defendant, a native of Samar, had not been shown to be fully acquainted with. The date of execution of the statement before the municipal court was not indicated. The separate statement signed by the defendant stating he was made to read the opening statement containing the Miranda warnings and that they were explained to him all the more engenders doubt as to whether the defendant was properly informed of his right.

 

Barredo, J., concurring:  The perfunctory question and answer in the statement in question is not sufficient. The person to be interrogated must not only be informed of his rights but must specifically be asked in a language he understands whether or not he desires to exercise those rights and only when he definitely, categorically and freely waives those rights may the investigation proceed and even then he may still invoke the same rights later.  VV.

 

 

People v. Tampus  96 SCRA 624 (1980)

 

Public trial; waiver of right to counsel

 

F:         Jose Tampus and Rodolfo Avila were prisoners at the National Penitentiary in Muntinlupa, Rizal. On June 14, 1976, they attacked and killed Celso Saminado, another prisoner. Afterwards, they surrendered to the prison guard, saying "surrender po kami. Gumanti lang po kami." Two days later, they gave extrajudicial confessions admitting the killing. They were accused of murder and pleaded guilty. They took the witness stand and affirmed their confessions. Tampus was sentenced to death while Avila to reclusion temporal. Trial took place at the Penitentiary. On review, it was contended that Tampus was denied the right to a public trial and to counsel.

 

HELD:  The record does not show that the public was actually excluded from the place where the trial was held or that the accused was prejudiced by the holding of the trial there. Anyway, the right to public trial may be waived. In another case where Avila was also a defendant, the SC directed that, for security reasons, Avila's trial be held in the National Penitentiary. The accused was warned in Tagalog that he had a right to remain silent and to counsel but despite this, he was willing to answer questions of the police. There is no doubt that the confession was voluntarily made. The truth is that shortly after the killing, Tampus and Avila admitted their guilt. That spontaneous statement, elicited without interrogation, was part of the res gestae and at the same time was a voluntary confession of guilt. By means of that statement given freely on the spur of the moment without any urging or suggestion, the two waived their right to remain silent and to counsel. VV.

 

            Teehankee's dissent doubted the voluntariness of the waiver made in the middle of his confession, and noted that the waiver should have been done before a responsible official of the penitentiary.

 

 

People v. Ochavido  142 SCRA 193 (1986)

 

Pre-Galit test of voluntariness of waiver of Miranda rights

 

F:         The appellants, who are inmates at the National Penitentiary, signed extrajudicial confessions admitting that they had stabbed to death another inmate on January 1, 1978 inside the penitentiary. They were convicted of murder and sentenced to death by the Circuit Criminal Court. On appeal, they contended that their confessions were inadmissible because they had not been informed of their Miranda rights prior to the execution of the confession.

 

HELD:  There was substantial compliance with the Miranda provision. The Prison Guard, to whom the confessions were given, gave the Miranda warnings to the appelants, after which the confessions were verified by the appellants before the Assistant Provincial Fiscal. VV.

 

 

People v. Nicandro  141 SCRA 289 (1986)

 

F:         The appellant was prosecuted for violation of the Dangerous Drugs Act. The prosecution witness, Pat. Romeo Joves testified that he saw her sell marijuana cigarettes to the police informer because the sale was done in a place where there were persons passing by. When told it was impossible to sell prohibited drugs openly, he said it was done secretly. Joves also said that at first he saw her hand a plastic bag containing marijuana leaves but later corrected himself, saying it was marijuana cigarettes. Joves testified further that after informing her of her rights, she admitted selling marijuana to the police informer and that the marijuana belongs to her. The police informer was not presented to testify. The trial court found her guilty.

 

HELD:  The Constitution in requiring a person under investigation "to be informed" of his right to remain silent and to counsel, contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. The degree of explanation required will necessarily vary, depending upon the education, intelligence and other relevant personal circumstances of the person under investigation. Where the subject is unlettered, a simpler and more lucid explanation is needed. It stands to reason that where the right has not been adequately explained and there are serious doubts as to whether the person interrogated knew and understood the questions, it is idle to talk of waiver of rights. Appellant acquitted. VV.

 

 

People v. Duhan  142 SCRA 100 (1986)

 

Perfunctory recitation of rights of the accused insufficient basis of waiver

 

F:         Credible evidence shows that four policemen rounded up the appellants in the evening of June 29, 1982 pursuant to a police saturation drive, and forced them to ride in their private vehicle to the police headquarters, informing them that they were rounded up for verification purposes. At the police station, they were brought inside the comfort room, one after the other, where they were maltreated and forced to admit possession of marijuana leaves. Appellants did not give any written statements to the police. Instead, the police investigator prepared for them Booking and Information Sheets which they later signed upon the police's assurances that they were for verification purposes and that they would be released after. It turned out that the Booking and Information Sheets contained the following admission: "Accused, after being informed of his constitutional right to remain silent and to counsel, readily admitted his guilt but refused to give any written statement." Instead of being released, they were then locked up in jail.

 

HELD: The mere assertion by a police officer that after the accused was informed of his constitutional right to remain silent and to counsel, he readily admitted his guilt does not make the supposed confession admissible against the purported confessant. SC cited the case of People v. Nicandro, reiterating that since the right to be informed requires comprehension, the degree of explanation required will necessarily vary, depending upon the education, intelligence and other relevant personal circumstances of the person under investigation. VV.

 

 

People v. Poyos  143 SCRA 543 (1986)

 

No valid waiver of right to counsel and to silence

 

F:         Poyos was convicted of the murder of a 77-year-old woman and sentence to death. His conviction was based solely on his extrajudicial confession which he disowned in court. The confession was given to the police and subscribed before the clerk of court and contains a waiver.

 

HELD:  It is doubtful, given the tenor of the question whether there was a definite waiver by the suspect of his right to counsel. His answer was categorical enough, to be sure, but the question itself was not since it spoke of a waiver only "for the moment." As worded, the question suggested a tentativeness that belied the suspect's supposed permanent foregoing of his right to counsel, if indeed there was any waiver at all. Moreover, he was told that he could hire a lawyer but not that one could be provided for him for free. VV.

 

            Since Royo's conviction for murder was based on a written confession showing that he was apprised of his right not only by the police but also by the fiscal, but that he waived these rights, then the waiver found to be voluntary, knowing and intelligent and thus admissible.

 

 

                                    b.  The Galit Rule (March 20, 1985 to Feb. 2, 1987)

 

            It is not enough that the confession is voluntary, knowing and intelligent.  The waiver must be made in the presence of counsel.  Waiver of the right to counsel must be made with the assistance of counsel.  This rule applied from March 20, 1985 to February 2, 1987.

 

            In People v. Galit, 135 SCRA 485 (1985), the SC, reiterating a dictum in Morales v. Enrile, 121 SCRA 538 (1983), ruled that no custodial investigation should be conducted unless it be in the presence of counsel, and that although the right to counsel may be waived, the waiver should not be valid unless made with the assistance of counsel.

 

            In the Galit case, however, the adoption of the Morales obiter was also an obiter.  The confession in this case was traditionally involuntary, and so the SC did not need the Morales obiter in order to disallow the confession.

 

            Under the facts of the case, the accused Galit was convicted of robbery with homicide on the basis of his confession, which was obtained through torture.  The NBI investigators covered Galit's face with a rag and then pushed it into a toilet bowl full of human waste.  It was only after they had broken his will that he signed the confession and posed for pictures for re-enactment as directed by the investigators.

 

 

People v. Galit  135 SCRA 465 (1985)

 

F:         Defendant was convicted of robbery with homicide by the Circuit Criminal Court. The principal prosecution witness testified that he heard the defendant and his wife, who was the mother of the witness' wife, quarrelling the morning after the crime. He said the defendant wanted to leave their house because he and his companions had robbed "Aling Nene." The prosecution also presented the extrajudicial confession of the defendant.

 

HELD:  The confession of the defendant is inadmissible because it was obtained through torture. The NBI investigators covered the defendant's face with a rag and then pushed in into a toilet bowl full of human waste. It was only after they had broken his will that the defendant signed the confession and posed for pictures for reenactment as directed by the investigators. The defendant is from Samar and there is no showing that he understood Tagalog. It was two weeks after he executed the salaysay that his relatives were permitted to visit him. His statement does not contain any waiver or right to counsel and yet during the investigation he was not assisted by one. These constitute gross violations of his right. The SC cited the case of Morales v. Ponce Enrile where it laid the procedure in custodial investigations: No custodial investigation shall be conducted unless it be in the precense of counsel engaged by the person arrested, or by any person on his behalf, or appointed by the court upon petition either of the detainee himself or of anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of this, whether exculpatory or inculpatory, in whole or in part, shall be inadmissible in evidence. VV.

 

 

            Whatever doubt as to the validity of the Galit rule, however, was laid to rest by the SC in People v. Sison, 142 SCRA 219 (1986).  The Court held that in People v. Galit, which was decided en banc and concurred in by all the Justices except one who took no part, the Court was out to rest all doubts regarding the ruling in Morales v. Enrile, and embraced its ruling.

 

            In this case, the prosecution sought to prove its charge of subversion against Asis by means of her confession given in the hospital, in which she admitted through a leading question, that she was a member of the NPA and that she was wounded in the encounter.  The SC upheld the trial court's decision excluding the confession on the ground that the waiver of the Miranda rights was made without the assistance of counsel.

 

 

People v. Sison  142 SCRA 219 (1986)

 

F:         Jocelyn de Asis was accused of subversion. At the trial, the Fiscal offered as evidence an extrajudicial confession given by her in the hospital. In that confession, she admitted, through a leading question that she was a member of the NPA. The trial court excluded the confession on the ground that the waiver of Miranda rights was made without the assistance of counsel. The prosecution contends that the ruling in Morales v. Ponce Enrile that the right to counsel may be waived only with the assistance of counsel, was only a dictum.

 

HELD:  In the case of People v. Galit, which was decided en banc and concurred in by all Justices except one who took no part, the SC put to rest all doubts regarding the ruling in Morales v. Ponce Enrile and Moncupa v. Enrile. VV.

 

 

Does the Galit rule have retroactive application?

 

            This requirement to have a counsel present when waiving the Miranda rights applies only to confessions made after March 20, 1985, waivers made before that date need not be made in the presence of counsel.

 

Compare People v. Ponce, 197 SCRA 746 (1991) with People v. Lim, 196 SCRA 809 (1991)

 

People v. Ponce, 197 SCRA 746 (1991)

 

 

People v. Lim, 196 SCRA 809 (1991)

 

            In People v. Nabaluna, 142 SCRA 446 (1986), Nabaluna et. al. were convicted of robbery with homicide on the basis, among others, of extrajudicial confessions taken in 1977.  The confessions and the special counsel before whom the confessions were signed prove that the Miranda warnings were given, but these were not made in the presence of counsel.  The SC, in allowing the confession, ruled that the GAlit ruling could not have a retroactive effect, especially since in this case the trial court decision was already rendered before the SC pronouncement.

 

People v. Nabaluna  142 SCRA 446 (1986)

 

Galit voluntariness test not retroactively applicable

 

F:         The appellants were convicted of robbery with homicide and sentenced to death on the basis, among other things, of extrajudicial confessions. The interrogation of appellants lasted from 10 a.m. to 3 p.m. on Dec. 5, 1977 yet their confessions were made the day after. The confessions stated that they had been given the Miranda warnings. Special counsel to whom the confessions were made testified he informed them of their right to remain silent; anything they say could be used against them; they had a right to counsel and if the can't afford one, their case will be referred to the Citizens Legal Assistance Office.

 

HELD:  The Court is mindful of the cases of Morales v. Ponce Enrile (1983), People v. Galit (1985), and People v. Pascual (1981) particularly the requisite that before a person under custodial investigation  may be deemed to have properly waived his right to counsel, a counsel must be present to assist him. But this requirement was laid down in the said cases only after final judgment in this case had been made by the trial court. No error should attach to the admission by the trial court of the extrajudicial statements as evidence. VV.

 

 

People v. Lasac  148 SCRA 624 (1987)

 

F:         Appellant was convicted of parricide on the basis of a confession and circumstantial evidence which the trial court found substantial to establish guilt.

 

HELD:  The waiver by the appellant of his right to counsel was made without the assistance of a counsel. The SC has held in Morales v. Ponce Enrile, People v. Galit and People v. Sison (1986) that this requirement is mandatory. Any statement obtained in violation of this procedure shall be inadmissible in evidence. VV.

 

 

                                    c.  New rule on waiver (Feb. 2, 1987)

 

Art. III, Sec. 12 (1):  Waiver must be in writing and made in the presence of counsel

 

            Art. III, Sec. 12. (1)  Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his choice.  If the person cannot afford the services of counsel, he must be provided with one.  These rights cannot be waived except in writing and in the presence of counsel.

             

 

            Under the new Constitution, any waiver must now be made (1) in writing, and (2) in the presence of counsel.

 

But see People v. Albofera, 152 SCRA 123 (1987)

 

 

Olaes v. People, 155 SCRA 486, supra.

 

 

                        6.  The burden of proving voluntariness of waivers is on the prosecution

 

            The burden to prove that there was a valid waiver of the Miranda warning devolves upon the one seeking to present the confession, that is, on the prosecution.  This rule applies whether in the pre-Galit, Galit, or 1987 rule.

 

            In People v. Jara, 144 SCRA 516 (1986), the SC noted that the stereotype "advice" appearing in practically all extrajudicial confessions which are later repudiated has assumed the nature of a legal form.  Investigators automatically type it together with "opo" as the answer, or ask the accused to sign it or even copy it in their handwriting.  Its tired punctilious, fixed and artificially stately style does not create an impression of voluntariness or even understanding on the part of the accused.

 

            Whenever a Constitutional protection is waived by one entitled to that protection, the presumption is always against the waiver.  Thus, the prosecution must prove with strongly convincing evidence that indeed the accused willingly and voluntarily submitted his confession, and knowingly and deliberately manifested that he was not interested in having a lawyer assist him during the taking of that confession.

 

 

People v. Jara, 144 SCRA 516 (1986)

 

F:         Appellants were found guilty of robbery with homicide for the killing and robbery of Ampara vda. de Bantigue on June 9, 1978. In another case, two of the appellants were found guilty of homicide for the killing on the same date of Luisa Jara while Felicisimo Jara, the husband of the deceased, was found guilty of parricide. Two of the appellants, Raymundo Vergara and Bernardo Bernadas, made extrajudicial confessions implicating Jara as the mastermind. The confessions were taken while the two were held incommunicado in the presence of five policemen and after two weeks of detention.

 

HELD:  The stereotyped "advice" of the Miranda rights appearing in practically all extrajudicial confessions which are later repudiated assumed the nature of a legal form or model. Its tired, punctilious, fixed and artificial style does not create an impression of voluntariness or even understanding on the part of the accused. The showing of a spontaneous, free and unconstrained giving up of a right is missing. Whenever a protection given by the Constitution is waived by the person entitled to that protection, the presumption is always against the waiver. Consequently,  the prosecution must prove with strong, convincing evidence that indeed the accused willingly and voluntarily submitted his confession and knowingly and deliberately manifested that he was not interested in having a lawyer assist him during the taking of that confession. That proof is missing in this case. VV.

 

 

                        7.  What may be waived:  The right to remain silent and to counsel, but not the right to be given "Miranda warnings"

 

            The right to remain silent and to counsel, which are the effectuations of the Miranda rights, can be waived.

 

            What cannot be waived are:

 

            1.  The right to be given the Miranda warnings.  (For how can one waive what one does not know?)

 

            2.  The right to counsel when making the waiver of the right to remain silent or to counsel.

 

 

                        8.  Exclusionary rule

 

            Art. III, Sec. 12. xxx

            (3)  Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

 

 

            Note than under [Art. III, Sec. 3(2)] the exclusionary rule reads: (any evidence obtained in violation of this or the preceding section shall be inadmissible "for any purpose in any proceeding."

            There are two exceptions to the exclusionary rule.  One, to impeach the credibility of the accused.  Two, public safety.

 

Impeach the credibility

 

            The unwarned or uncounselled confession is not totally without use.  While it is not admissible to prove the guilt of the accused, it may be used against him to impeach his credibility by showing that he is lying in court, so ruled the U.S. Supreme Court in Harris v. New York, 401 U.S. 222 (1971).

 

 

Harris v. New York, 401 U.S. 222 (1971)

 

            In this case, Harris was arrested for twice selling heroin to an undercover police agent.  He confessed to the crime during the police interrogation, but the confession was uncounselled, and so it was held as inadmissible in evidence.  But when Harris took the witness stand, he testified that what he sold was baking powder in order to defraud the police agent.  The SC allowed the prosecution to introduce the uncounselled statment to show that he was lying.

 

            In justifying the admission of the testimony, Justice Burger  said  that it is one thing to say that the government cannot  make an affirmative use of the evidence unlawfully obtained, and quite another to say that the defendant can turn the illegal method by which the evidence in the possession   of the government was obtained to his own advantage, providing himself with a shield against perjury and the contradiction of his untruths.

 

            The reason, continued the  Court is that the shield provided by the Miranda rights cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.

 

Public Safety

 

            Public Safety may justify the police in taking confessions without prior warning.  Thus ruled the U.S. Supreme Court in New York v. Quarles, 104 S. Ct. 2626 (1984).

 

 

 

New York v. Quarles, 104 S. Ct. 2626 (1984).

 

 

            In the case, the Court excused the giving of the Miranda warning because the public safety required that the weapon had to be located before it could be used by the accused against those in the supermarket.

 

            The criticism hurled against this ruling is that while the police may be justified in forcing the assailant to say where the weapon is located, he is not justified to present this in evidence in the subsequent criminal prosecution.

 

 

            C.  Right to bail

 

            Art. III, Sec. 13.  All persons, except those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law.  the right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended.  Excessive bail shall not be required.

 

 

                        1.  When right may be invoked

 

            The right to bail is available from the very moment of arrest  (which may be before or after the filing of formal charges in court) up to the time of conviction by final judgement (which means after appeal).

 

            No charge need be filed formally before one can file for bail, so long as one is under arrest.  So ruled the SC in Heras Teehankee v. Rovica.  75 Phil.634 (1945).

 

            The case was unique in that after the war, the People's Court Act amended Art. 125 of the RPC to allow for a longer time to detain persons because of the impossibility of filing charges within the reglementary period due to the number of indictees.

 

Harris Teehankee v. Rovira, 75 Phil. 634 (1945)

 

 

 

People v. San Diego, 26 SCRA 522 (1968)

 

 

 

Bail and Habeas Corpus

 

            In the case  of bail, there is an implicit recognition that the arrest and detention, are valid, or that even if they were initially illegal, such illegality was cured by the subsequent filing of a case in court.  Thus, the prayer in bail is that one be released temporarily from such valid detention, and this can be made anytime after arrest.

 

            In habeas corpus,  the assumption is precisely that the arrest and detention are illegal, so that the prayer is to be released permanently from such illegal detention.  When the privilege of the writ is suspended, the arrest and detention remain illegal, but the remedy afforded by law to the victim is not available.  Under the 1987 Constitution, though the effect of the suspension  has been considerably lessened to the need to file a case within 72 hours from the illegal arrest, otherwise the detainee is to be released.

 

            The Constitution now provides, overruling Morales v. Enrile, that the suspension of the privilege of the writ does not carry with it the suspension of the right to bail.  Habeas Corpus refers to illegal detention, while bail refers to legal detention, or even detention that started as illegal but was cured by the filing of a case in court.

 

 

                        2.  When bail is a matter of right, when it is a matter of discretion

 

            Bail is a matter of right in all cases not punishable by reclusion perpetua.

 

            It is a matter of discretion in case the evidence of guilt is strong.  In such a case, according to People v. San Diego, 26 SCRA 522 (1966), the court's discretion to grant bail must be exercised in the light of a summary of the evidence presented by the prosecution.  Thus, the order granting or refusing bail must contain a summary of the evidence for the prosecution followed by the conclusion on whether or not the evidence of guilt is strong.

 

            The only time bail may be denied is when (a) the offense is punishable by reclusion perpetua, and (b) the evidence of guilt is strong.

 

            With the abolition of the death penalty (III, 20), and the automatic commutation of a death sentence to reclusion perpetua, it is contended that when the 1987 Constitution denies the right to bail in offenses punishable by reclusion perpetua, it is meant to apply only to those crimes which were once punishable by death.  For if it includeds even those crimes which before and now are really punishable by reclusion perpetua, it would go against the very spirit of the Constitution.

 

 

People v. Donato, 196 SCRA 130 (1991)

 

                       

 

                        3.  Bail in courts-martial

 

Commendador v. De Villa, 200 SCRA 80 (1991)

 

 

Aswat v. Galido, 204 SCRA 205 (1991)

 

 

Ruffy v. Chief of Staff, 75 Phil. 875 (1946)

 

 

                        4.  Standards for fixing bail

 

            Rule 114, Sec. 6.  Amount of bail; guidelines.--  The judge who issed the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to the following guidelines:

            (a)  Financial ability of the accused to give bail;

            (b)  Nature and circumstances of the offense;

            (c)  Penalty of the offense charged;

            (d)  Character and reputation of the accused;

            (e)  Age and health of the accused;

            (f)  The weight of the evidence against the accused;

            (g)  Probability of the accused appearing in trial;

            (h)  Forfeiture of other bonds;

            (i)  The fact that accused was a fugitive from justice when arrested; and

            (j)  The pendency of other cases in which the accused is under bond.

            Excessive bail shall not be required.

 

 

            Where the right to bail exists, it should not be rendered nugatory be requiring a sum that is excessive, otherwise, it becomes "a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will" (Jackson).  Thus, said the SC in De la Camara v. Enage, 41 SCRA 1 (1971).

 

            In this case, a bail of P1.195 million imposed against Mayor Camara for charges of 12 murders and 12 frustrated murder was found excessive.

 

            The SC laid down the following guidelines in fixing the amount of bail in Villasenor v. Abano, 21 SCRA 312 (1967), later contained in sec. 6 of Rule 114.

 

            1.  Ability of the accused to give the bail.

            2.  Nature of the offense.

            3.  Penalty for the offense charged.

            4.  Character and reputation of the accused

            5.  Health of the accused.

            6.  Character and strength of the evidence.

            7. Probability of the accused appearing in trial.

            8.  Forfeiture of other bonds.

            9. Whether the accused was a fugitive from justice when arrested.

            10. If the accused is under bond for appearance at trial in other cases.

 

            Even when the accused has previously jumped bail, still he cannot be denied bail.  the remedy in this case is to increase the  amount of the bail (Siquiam v. Amparo).

 

 

Villasenor v. Abano, 21 SCRA 312 (1967)

 

 

De la Camara v. Engage, 41 SCRA 1 (1971)

 

 

 

 

                        5.   Right to bail and right to travel abroad

 

            Art. III, Sec. 6.  The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court.  Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

 

 

            In Manotoc v. Court of Appeals, 142 SCRA 149 (1986), the SC disallowed a person released on bail to travel abroad for a business trip.  The Court gave 2 reasons why bail operates only within the country.

 

            One, the accused may be placed beyond the jurisdiction of the court if he were allowed to leave the Philippines without sufficient reason, thus affecting one of the conditions in the grant of bail, namely to have the accused available whenever the court requires his presence.

 

            Two, implicit in the bail is the agreement between the State and the surety that the State will do nothing to make it difficult for the surety to arrest the defendant upon order of the court.  If the court thus allows his to leave, then the State loses its right to order the forfeiture of the bond because it itself has breached its obligation to the surety.

 

            The case leaves the question of allowing an accused under bail to go abroad for humanitarian reasons open-ended.  This reason was not foreclosed by the Court, which hinted that the accused could be allowed to leave if he had "sufficient reason".  What the Court found insufficient was the business trip.

 

 

Manotok v. CA, 142 SCRA 149 (1986) 

 

F:         Petitioner is a principal stockholder of two corporations, in one of which he was the president. The firms were placed under a management committee by the SEC and petitioner was placed "on hold" by the Commission of Immigration. Petitioner was charged with estafa. He later asked for permission to leave the country for business reasons, but his request was denied by the courts. He filed a petition for certiorari but his petition was also dismissed for lack of merit. He appealed to the SC.

 

HELD:  The condition imposed by Rule 114, sec. 1 upon the accused to make himself available whenever the court requires his presence, operates as a valid restriction on his right to travel. The constitutional right to travel is not absolute, but is subject to lawful orders of the court.  VV.

 

 

                        6.  Waiver of the Right to Bail

 

People v. Donato, 198 SCRA 130 (1991) 

 

 

 

            D.  Rights during trial

 

            Art. III, Sec. 14.  (1)  No person shall be held to answer for a criminal offense without due process of law.

            In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf.  However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. 

 

 

                        1.  Presumption of innocence

 

            In People v. Dramavo, 42 SCRA 69 (1971), the SC noted that the requirement of proof beyond reasonable doubt is a necessary corollary of the constitutional right to be presumed innocent.

 

People v. Dramavo, 42 SCRA 69 (1971)

 

 

            In Igot v. Comelec, 95 SCRA 392 (1980), a law disqualifying candidates charged with national security offences was struck down as unconstitutional, for violating the presumption against innocence.

 

Igot v. Comelec, 95 SCRA 392 (1980)

 

 

            In Alejandro v. Pepito, 96 SCRA 322 (1980), a judge who allowed the accused to present his evidence ahead of the prosecution, over the objection of the prosecution, after the acused admitted the killing but invoked self-defense, was reversed by the SC on the ground that this change in the order of trial violated the constitutional presumption of innocence which places the burden proof on the prosecution.

 

            This ruling was modified by Rule 119, sec. 3 (e) of the 1985 Rules of Criminal Procedure which now reverses the order of trial when the defendant admits the act but invokes a justifying or exempting circumstance.

 

 

Alejandro v. Pepito, 96 SCRA 322 (1980)

 

Order of trial as provided in the Rules of Court is essential to due process

 

F:         Respondent judge issued an order directing that, in view of the fact that as accused in the criminal case, petitioner admitted to the killing, he must first prove self-defense and then the prosecution would present evidence to disprove it. Petitioner moved for reconsideration of the order. When his motion was denied, he filed a petition for certiorari in the SC.

 

HELD:  The constitutional provision that no person shall be held to answer for a criminal offense without due process of law requires that the procedure in Rule 119, sec. 3 be followed. That procedure protects the right of the accused to be presumed innocent until the contrary is proved. This orderly course of procedure requires that the prosecution shall for forward and present all its proof in the first instance. In US v. Gaciran, the defense had produced its proofs before the prosecution presented its case, and it was held that no substantial rights of the accused were prejudiced. However, in that case no objection was entered in the court below. In this case, the change in the order of trial made by the Judge was timely objected.

 

Note:  The ruling in Alejandro v. Pepito was abrogated by Rule 119, sec. 3(e) which provides that when the accused admits the acts or omissions charged in the complaint or information but interposes a lawful defense, the order of trial may be modified accordingly.  VV.

 

 

BARLONGAY CASE:

 

People v. de Guzman, 231 SCRA 739

 

F:         De Guzman, Castro and Catap were charged with murder for the killing of an unidentified person on Nov. 16, 1994.  Only De Guzman and Castro were arrested and both pleaded not guilty.  They were convicted by the court mainly on the basis of the testimony of Adelia Angeles.  She positively identified the 2 accused as the persons who were with Catap who maltreated an unidentified person whom they had tied to an ipil-ipil tree and upon seeing her, she testified that they untied the man  and brought him towards the direction of the Pasig river which was only 3 houses away.  This was further strengthened by the extrajudicial confession (EJC) of accused Castro to Police Corporal Dominador Cunanan that it was Catap who killed the victim and that he and de Guzman acted only as look-outs.

 

Issue:    W/N the constitutional presumption of innocenec of the accused has been overcome.

 

HELD:  YES

            Though there is no direct evidence to link the 3 accused to the killing of the unknown  victim, the circumstantial evidence presented satisfied  Sec. 4, Rule 133 ROC namely: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce conviction beyond resonable doubt.

            With regard to the EJC of Accused Castro to Police Cpl. Cunanan,  there is no evidence that Cunanan had any motive to falsely testify against accused.  While it is true that accused's EJC was made without the advice and assistance of counsel, hence inadmissible as evidence, it could be treated as a verbal admission of the accused  established through the testimonies of persons who heard it or who conducted the investigatiuon  of the accused (Peo v Molas 218 SCRA 473).  Moreover in Peo  v Alvarez,  the court ruled that an extrajudicial confession is admissible against a co-accused when it is used as a circumstantial evidence to show the probability of the participation  of said co-accused in the crime committed.  Suzette.

 

 

 

                        2.  Right to be heard personally or by counsel

 

            Adequate legal assistance shall not be denied to any person by reason of poverty (Art. III, Sec. 11.)  No matter how educated one may be, he may not know how to establsih his innocence for the simple reason that he does not know the rules of evidence said the SC in People v. Holgado, 85 Phil 752 (1952).

 

 

People v. Holgado, 85 Phil 752 (1952)

 

F:         Appellant Frisco Holgado was charged in the court of First Instance of Romblon with slight illegal detention because he did "feloniously and without justifiable motive, kidnap and detain one Artemia Fabreag in the house of Antero Holgado for about eight hours thereby depriving said Artemia Fabreag of her personal liberty." Accused, unaided by counsel, pleaded guilty and said that he was instructed by Mr. Ocampo to do so.

                Accused was convicted of a capital offense.

                Since the accused-appellant pleaded guilty and no evidence appears to have been presented by either party, the trial judge must have deduced the capital offense from the facts pleaded in the information.

 

Ruling:  Under the circumstances, particularly the qualified plea given by the accused who was unaided by counsel, it was not prudent, to say the least, for the trial court to render such a serious judgment finding the accused guilty of a capital offense, and imposing upon him such a heavy penalty as ten years and one day of prision mayor to twenty years, without absolute any evidence to determine and clarify the true facts of the case.

            The proceedings in the trial court are irregular from the beginning. It is expressly provided in our rules of Court, Rule 112, section 3 (now Rule 116, Sec. 6), that:

 

                If the defendant appears without attorney, he must be informed by the court that it is his right to have attorney before being arraigned., and must be asked if he desires the aid of attorney, the Court must assign attorney de oficio to defend him. A reasonable time must be allowed for procuring attorney.

 

            Not one of these duties had been complied with by the trial court.

            One of the great principles of justice guaranteed by our Constitution is that "no person shall be held to answer for a criminal offense without due process of law", and that all accused "shall enjoy the right to be heard by himself and counsel." In criminal cases there can be no fair hearing unless the accused be given the opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio if he so desires and he is poor grant him a reasonable time to procure an attorney of his own.  Glynda.

 

 

            Q:  What happens if the accused files a demurrer to the evidence of the prosecution (on the ground that the prosecution failed to tender a case) and this motion is denied -- could the defense still present its own evidence?

 

            In Abriol v. Homeres, 84 Phil 525, (1949), the SC ruled in the affirmative, contending that the right of the accused to present his evidence is a constitutional right which cannot be defeated by the dismissal of the motion of demurrer.

 

Filing of demurrer to evidence is a WAIVER of right to be heard  (Rule 119, Sec. 15.)

 

Abriol v. Homeres, 84 Phil 525, (1949)

 

F:         Fidel Abriol, together with six other persons, was accused of illegal possession of firearms and ammunition. After the prosecution had presented its evidence and rested its case, counsel for the defense moved to dismiss the case on the ground of insufficiency of the evidence to prove the guilt of the accused. After hearing the arguments for and against the motion for dismissal, the court held the proofs sufficient to convict and denied said motion, whereupon counsel for the defense offered to present evidence for the accused. The provincial fiscal opposed the presentation of evidence by the defense, contending that the present procedural practice and laws precluded the defense in criminal cases from presenting any evidence after it had presented a motion for dismissal with or without reservation and after said motion had been denied, and citing as authority the case of United States vs. De la Cruz, 28 Phil., 279. His Honor Judge S. C. Moscoso sustained the opposition of the provincial fiscal and, without allowing the accused to present evidence in their defense, convicted all of them and sentenced the herein petitioner to suffer seven years of imprisonment and to pay a fine of P2,000.

 

Issue:   Whether the accused should be allowed to present evidence after the denial of their motion to dismiss on the ground of insufficiency of evidence of the prosecution

 

Ruling:  The accused should be allowed to present evidence.

 

            1.  The refusal of Judge Moscoso to allow the accused-petitioner to present proofs in his defense after the denial of his motion for dismissal was a palpable error which resulted in denying to the said accused the due process of law guaranteed in the Bill of Rights embodied in the Constitution, it being provided in Article II, section 1 (17), of the Constitution that in all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel and to have compulsory process to secure the attendance of witnesses in his behalf. There is no law nor "procedural practice" under which the accused may ever be denied the right to be heard before being sentenced.

            Now that the Government cannot appeal in criminal cases if the defendant would be placed thereby in double jeopardy (sec. 2, Rule 118), the dismissal of the case for insufficiency of the evidence after the prosecution has rested terminates the case then and there. But if the motion for dismissal is denied, the court should proceed to hear the evidence for the defense before entering judgment regardless of whether or not the defense had reserved its right to present evidence in the event its motion for dismissal be denied. The reason is that it is the constitutional right of the accused to be heard in his defense before sentence is pronounced on him. Of course if the accused has no evidence to present or expressly waives the right to present it, the court has no alternative but to decide the case upon the evidence presented by the prosecution alone.

 

            2. The main question to decide is whether the writ of habeas corpus lies in a case like the present. 

            We have already shown that there is no law or precedent which could be invoked to place in doubt the right of the accused to be heard or to present evidence in his defense before being sentenced. On the contrary, the provisions of the Constitution hereinabove cited expressly and clearly guarantee to him that right. Such constitutional right is inviolate. No court of justice under our system of government has the power to deprive him of that right. If the accused does not waive his right to be heard but on the contrary  as in the instant case  invokes that rough, and the court denies it to him, that court no longer has jurisdiction to proceed; it has no power to sentence the accused without hearing him in his defense; and the sentence thus pronounced is void and may be collaterally attacked in a habeas corpus proceeding.

            Although the sentence against the petitioner is void for the reasons hereinabove stated, he may be held under the custody of the law by being detained or admitted to bail until the case against him is finally and lawfully decided. The process against him in criminal case No. 1472 may stand should be resumed from the stage at which it was vitiated by the trial court's denial of his constitutional right to be heard. Up to the point when the prosecution rested, the proceedings were valid and should be resumed from there.  Glynda.

 

 

            But Rule 119, sec. 5 of the 1985 Rules of Criminal Procedure modified this ruling by now providing that when at the end of the presentation of evidence by the prosecution the defense moves to quash the information, the filing of such motion to quash is equivalent to a "waiver" of the right to present evidence.

 

            If the motion is denied, the court will no longer receive the evidence of the defense but instead proceed with the judgment on the basis solely of the evidence of the  prosecution.  This is not unconstitutional so long as it is made clear to the accused that if he moves to demur to the evidence,  he can no longer present his evidence.  Also it does not follow that just because the demurrer is denied, then the accused would be convicted, in view of the quantum of evidence required to sustain a conviction.

 

            If on the other hand, the motion is granted and the court agrees that the information or prosecution evidence is insufficient to form a case, then the effect of the grant is an acquittal, to which no appeal can be taken anymore, said the SC in People v. Donesa, 49 SCRA 281 (1973).

 

 

People v. Donesa, 49 SCRA 281 (1973)

 

Grant of demurrer is equivalent to an acquittal

 

F:         After prosecution presented its witnesses, the defense moved for dismissal of the case on the ground of insufficiency of evidence.  The judge granted the motion.

 

Issue:  Did such dismissal operate as an acquittal of the accused?

 

Ruling: YES

            A dismissal ordered after the termination of the presentation of the evidence for the prosecution has the force and effect of an acquittal. Since there is a failure to prove the guilt of the accused, the case must be dismissed,  and it will be a bar to another prosecution for the same offense even though it was ordered by the Court upon motion or with the express consent of the defendant, in exactly the same way as a judgment of acquittal.  Glynda.

            Rule 119, Sec. 15.  Demurrer to evidence.--  After the prosecution has rested its case, the court may dismiss the case on the ground of insufficiency of evidence:  (1)  ont its own intitiative after givint the prosecution an opportunity to be heard; or (2)  on motion of the accused filed with proper leave of court.

            If the court denies the motion for dismissal, the accused may adduce evidence in his defense.  When the accused files such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.  (Rules of Court.)  

 

 

People v. Canceren, 229 SCRA 581

 

F:            Romeo Canceran was charged with murder for the killing of Pripert Doroja on February 14, 1989.  It was established during the trial, through the testimonies of Arnold Bautista, Edralin Melindez and the mother of the victim Francisca Doroja, that Canceran, Bautista, Melindez and the victim were all seated and having a drinking session when Canceran accidentally shot the victim while playing with a revolver.  He was found guilty by the trial court.

 

Issue:    W/N accused was denied of his constitutional right to counsel  especially during the most delicate stages of the trial.

 

HELD:  NO

            The issue of violation of the accused 's right to an attorney can be readily settled by reading the Original Records of this case.  During his arraignment, the accused was duly assisted by counsel de oficio, Atty. Manglicmot.  The Order of the trial court dated 21 March 1989 directed the Citizens legal Assistance Office to thereafter represent the accused.  Clearly, no violation of the right to counsel was committed.  The paraffin test (which came out positive) conducted without the presence of counsel did not violate the right against self-incrimination nor the right to counsel.  Suzette.

 

 

 

                        3.  Right to free legal assistance

 

            Art. III, Sec. 11.  Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.

 

 

People v. Rio, 201 SCRA 702 (1991)

 

F:         On 29 December 1989, the accused-appellant Ricardo Rio, in two (2) letters dated 14 December 1989, addressed to Division Clerk of Court Fermin J. Garma and to Assistant Clerk of Court Tomasita M. Dris, manifested his intention to withdraw the appeal due to his poverty.

 

            Paraphrasing Mr. Justice Malcolm, "Two (2) of the basic privileg­es of the accused in a criminal prosecution are the right to the assistance of counsel and the right to a preliminary examination. President Mckinley made the first a part of the Organic Law in his Instructions to the Commission by imposing the inviolable rule that in all criminal prosecutions the accused 'shall enjoy the right ... to have assistance of counsel for the defense' ". Today said right is enshrined in the 1987 Constitution for, as Judge Cooley says, this is "perhaps the privilege most important to the person accused of crime." 

            "In criminal cases there can be no fair hearing unless the ac­cused be given an opportunity to be heard by counsel. The right to be heard would be of little meaning if it does not include the right to be heard by counsel. Even the most intelligent or edu­cated man may have no skill in the science of the law, particu­larly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated.  It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implement­ed that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attor­ney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor, or grant him a reasonable time to procure an attorney of his own."

            This right to a counsel de oficio does not cease upon the convic­tion of an accused by a trial court.  It continues, even during appeal, such that the duty of the court to assign a counsel de oficio persists where an accused interposes an intent to appeal. Even in a case, such as the one at bar, where the accused had signified his intent to withdraw his appeal, the court is re­quired to inquire into the reason for the withdrawal. Where it finds the sole reason for the withdrawal to be poverty, as in this case, the court must assign a counsel de oficio, for despite such withdrawal, the duty to protect the rights of the accused subsists and perhaps, with greater reason. After all, "those who have less in life must have more in law." Justice should never be limited to those who have the means. It is for everyone, whether rich or poor. Its scales should always be balanced and should never equivocate or cogitate in order to favor one party over another.

            It is with this thought in mind that we charge clerks of court of trial courts to be more circumspect with the duty imposed on them by law (Section 13, Rule 122 of the Rules of Court) so that courts will be above reproach and that never (if possible) will an innocent person be sentenced for a crime he has not committed nor the guilty allowed to go scot-free.

            In this spirit, the Court ordered the appointment of a counsel de oficio for the accused-appellant and for said counsel and the Solicitor General to file their respective briefs, upon submis­sion of which the case would be deemed submitted for decision.

 

                From the records of the case, it is established that the accused- appellant was charged with the crime of rape in a verified com­plaint filed by complainant Wilma Phua Rio, duly subscribed before 3rd Assistant Fiscal Rodolfo M. Alejandro of the province of Rizal, which reads as follows:

                That on or about the 24th day of March, 1984, in the Municipality of Muntinlupa, Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation did then and there wilfully, unlawfully and feloniously have carnal knowledge of the under­signed Wilma Phua against her will.

                On 26 June 1985, at the arraignment, the accused-appellant, assisted by Atty. Leonido Manalo of the Makati CLAO office, as counsel de oficio, entered a plea of not guilty to the offense charged. 

                xxx

                The trial court found the accused-appellant guilty of the crime of rape.

 

                The theory of the defense at the trial level was grounded on alibi. The accused claimed that at the time of the alleged com­mission of the crime of rape he was in Romblon. This claim was corroborated by the accused's brother, Amado Rio. However, this claim was, as aforestated, rebutted by the prosecution's submis­sion of the voter's affidavit executed by the accused in Muntin­lupa, Metro Manila on 31 March 1984 when appellant claimed he was in Romblon.

               

HELD:   On appeal, appellant's counsel de oficio changed the theory of the defense. The new theory presented by counsel de oficio is that Wilma Phua consented when accused-appellant had sexual intercourse with her on 24 March 1984. It was stressed by counsel de oficio that the rape occurred on 24 March 1984 and that, allegedly, it was the fourth time accused had abused complainant. This allegation as well as the fact that complainant failed to lock the door to the bathroom could only have been due to the fact that there was consent. The charge was filed, according to defense counsel de oficio, only because the complainant's mother caught them.

            This theory of the defense on appeal that there had been consent from the complainant, fails to generate doubt as to the accused's guilt, for it would be an incredulous situation indeed to believe that one, so young and as yet uninitiated to the ways of the world, would permit the occurrence of an incestuous relationship with an uncle, a brother of her very own mother.  The Court notes the sudden swift in the theory of the defense from one of total denial of the incident in question, by way of alibi, to one of participation, that is, with the alleged consent of the complainant. This new version could only be attributed by the Court to the fact that counsel on appeal is different from the counsel in the trial court. Although the Solicitor General has suggested that this sudden shift be interpreted as an after­thought by the accused or a desperate effort to get himself acquitted, the Court deems it more likely that this shift was caused by counsel de oficio's preparation of the appellant's brief without examining the entire records of the case. If the appointed counsel for the accused, on appeal, had read the records and transcripts of the case thoroughly, he would not have changed the theory of the defense for such a shift can never speak well of the credibility of the defense. Moreover, the rule in civil procedure, which applies equally in criminal cases, is that a party may not shift his theory on appeal. If the counsel de oficio had been more conscientious, he would have known that the sudden shift would be violative of aforementioned procedural rule and detrimental to the cause of the accused-appellant (his client).

            The Court hereby admonishes members of the Bar to be more con­scious of their duties as advocates of their clients' causes, whether acting de parte or de oficio, for "public interest re­quires that an attorney exert his best efforts and ability in the prosecution or defense of his client's cause." Lawyers are an indispensable part of the whole system of administering jus­tice in this jurisdiction. And a lawyer who performs that duty with diligence and candor not only protects the interests of his client; he also serves the ends of justice, does honor to the Bar and helps maintain the respect of the community to the legal profession. This is so because the entrusted privilege to prac­tice law carries with it correlative duties not only to the client but also to the court, to the bar and to the public.

            While a lawyer is not supposed to know all the laws, he is expected to take such reasonable precaution in the discharge of his duty to his client and for his professional guidance as will not make him, who is sworn to uphold the law, a transgressor of its precepts.

            The fact that he merely volunteered his services or the circum­stance that he was a counsel de oficio neither diminishes nor alters the degree of professional responsibility owed to his client. The ethics of the profession require that counsel display warm zeal and great dedication to duty irrespective of the client's capacity to pay him his fees. Any attempted presentation of a case without adequate preparation distracts the administration of justice and discredits the Bar.  Glynda.

 

                       

                        4.  Right to be informed of nature and cause of accusation

 

            The arraignment in criminal prosecution is precisely intended to comply with the right of the accused to be informed of the nature and cause of the accusation against him.  As noted in Vera v. People, procedural due process requires that the accused must be informed why he is being prosecuted and what charge  he must meet.

 

Borja v. Mendoza, 77 SCRA 422 (1977)

    

No valid trial in absentia without arraignment

 

F:         Petitioner was accused of slight physical injuries in the City Court of Cebu. After one postponement due to petitioner's failure to appear, the case was reset. Again, petitioner failed to appear, despite notice to his bondsman. The court then allowed the prosecution to present evidence despite the fact that petitioner had not been arraigned. After the offended party had testified and presented documentary evidence, the court found petitioner guilty. The CFI affirmed the decision. Hence, this petition for certiorari.

 

HELD:  Respondent Judge committed a grave abuse of discretion and his decision is void. Because petitioner was not arraigned, he was not informed of the nature and cause of accusation against him. Arraignment is an indispensable requirement in any criminal proceeding.  VV.

 

 

                        5.  Right to speedy, impartial and public trial

 

                                    (1)  Speedy Trial

 

            The right to a speedy trial means one that is free from vexatious and oppressive delays.  Its objective is to free the innocent person from anxiety and expense of a court litigation, or otherwise, to have his guilt determined within the shortest possible time, compatible with the presentation and consideration of whatever legitimate defense the accused may interpose.

 

            While reasonable delay may be allowed as determined on a case to case basis, an unreasonable delay on the part of the prosecution to present its case, thereby causing the threat of penal liability to remain hanging over the head of the accused for an extended period of time, violates the right of the accused to a speedy trial.

 

            The remedy of the accused in this case is habeas corpus if he has been restrained of his liberty, or certiorari, prohibition or mandamus for the final dismissal of the case; and dismissal based on the denial of the right to speedy trial amounts to an acquittal.

 

            So said the SC in Acevedo v. Sarmiento, 36 SCRA 247 (1970), a case involving the prosecution for damage to property through reckless imprudence which had been pending for 6 years, the last step taken being the start of the cross-examination of the complaining witness, who did not appear thereafter.  The SC ordered the case dismissed with prejudice, thus acquitting the accused.

 

Acevedo v. Sarmiento, 36 SCRA 247 (1970)

 

 

 

                                    (2)  Public Trial

   

            A public trial does not require that the entire public can witness the trial.  It is enough if it is conducted at a place where one's relatives and friends can be accommodated and the public may know what is going on.

 

            The right is not absolute.  The court can order the public out of the trial room in the interest of morality and order.

 

            In Garcia v. Domingo, 52 SCRA 143 (1970), the SC dismissed the contention of one party that the trial was conducted inside the chamber of the judge on the ground that the objection came too late (the party only complained after the 14th hearing) and that the place was agreed upon by the parties for their mutual convenience (the judge's room was air conditioned).

 

 

Garcia v. Domingo, 52 SCRA 143 (1970)

 

The pivotal question in this petition for certiorari and prohibition, one which thus far has remained unresolved, is the meaning to be accorded the constitutional right to public trial.

 

Issue: Is the holding of trial in the chambers of the judge violative of the right to a public trial?

 

Ruling:  NO

            The defendants in this case agreed that the hearings be held in the chambers.  On fourteen separate occasions this was the case and there was no objection on their part.  There was no evidence to substantiate the claim that any other person was excluded from the chambers.   It is thus evident that what took place in the chambers of the city court judge was devoid of haste or intentional secrecy.

            The trial must be public. It possesses that character when anyone interested in observing the manner a judge conducts the proceedings in his courtroom may do so. There is to be no ban on such attendance. His being a stranger to the litigants is of no moment. No relationship to the parties need be shown. The thought that lies behind this safeguard is the belief that thereby the accused is afforded further protection, that his trial is likely to be conducted with regularity and not tainted with any impropriety. It is not amiss to recall that Delegate Laurel in his terse summation the importance of this right singled out its being a deterrence to arbitrariness. It is thus understandable why such a right is deemed embraced in procedural due process. Where a trial takes place, as is quite usual, in the courtroom and a calendar of what cases are to be heard is posted, no problem arises. It the usual course of events that individuals desirous of being present are free to do so. There is the well recognized exception though that warrants the exclusion of the public where the evidence may be characterized as "offensive to decency or public morals."

            What did occasion difficulty in this suit was that for the convenience of the parties, and of the city court Judge, it was in the latter's air-conditioned chambers that the trial was held. Did that suffice to investigate the proceedings as violative of this right? The answer must be in the negative. There is no showing that the public was thereby excluded. It is to be admitted that the size of the room allotted the Judge would reduce the number of those who could be  present. Such a fact though is not indicative of any transgression of this right. Courtrooms are not of uniform dimensions. Some are smaller than others. Moreover, as admitted by Justice Black in his masterly In re Oliver opinion, it suffices to satisfy the requirement of a trial being public if the accused could "have his friends, relatives and counsel present, no matter with what offense he may be charged."

            Then, too, reference may also be made to the undisputed fact at least fourteen hearings had been held in chambers of the city court Judge, without objection on the part of respondent policemen.  xxx  Glynda.

 

 

 

                                    (3)  Impartial trial

 

            One aspect of an impartial trial is a neutral magistrate who exercises cold impartiality.

 

            In Tumey v. Ohio, 273 U.S. 510 (1927), it was held that a town mayor who was paid on the basis of the fine he imposes for every conviction for violation of the drinking laws, could not be an impartial judge.  Under such a situation, he would be interested in convicting those he tries so he would earn more.

 

Tumey v. Ohio, 273 U.S. 510 (1927)

 

 

            Another aspect of an impartial trial is an impartial tribunal bound by the Bill of Rights and the strict rules of evidence and procedure.

 

            In Olaguer v. Military Commission, 150 SCRA 144 (1987), the SC held that a civilian cannot be tried by a military court (in connection with the Light a Fire Movement) so long as the civil courts are open and operating, even during Martial Law.

 

 

                        6.  Right to confront witness

 

            The purpose of this right is to enable the accused to test the credibility of the witness.  The best means of confrontation is the process of cross-examination.

 

 

                        7.  Right to secure attendance of witnesses (and the production of evidence in his behalf)

 

            There are various means available to the parties to compel the attendance of witnesses and the production of documents and things needed in the prosecution or defense of a case in an adversarial manner: subpoena and subpoena duces tecum:  depositions and other modes of discovery; perpetuation of testimonies.

    

 

                        8.  Trial in Absentia

 

            Although the right to be present is not explicit in the provision, it is inferrable from the phrase "trial may proceed notwithstanding the absence of the accused"

 

            This right to be present may, however, be waived by the accused.  Rule 115, sec, 1(c), talks of 3 ways that the waiver may take place:  (a)  express waiver pursuant to the stipulations set forth in his bail bond, unless his presence is specifically ordered by the court for purposes of identification;  (b)  implied waiver when the accused without any justifiable cause is absent at the trial on a particular date of which he had notice; and (c) implied waiver when the accused under custody who had been notified of the date of trial escapes.

            In cases in which there have been a waiver of the right to be present, whether expressed or implied, the trial may be held "in absentia".  The requisites of a valid trial in absentia are:  (i)  the accused has been arraigned; (ii)  he was duly notified of the hearing; and (iii)  his failure to attend the trial is unjustified.

 

            There can be no valid trial in absentia unless the accused has been arraigned, ruled the SC in Boria v. Mendoza, 77 SCRA 422 (1977), a case involving a charge for slight physical injuries where the accused failed to appear and so the trial court allowed the prosecution to present its evidence even if the accused has not yet been arraigned.  Arraignment is crucial because it informs the accued of the nature and cause of the accusation against him.  Conviction without arraignment violates due process and ousts the court of its jurisdiction.

 

Boria v. Mendoza, 77 SCRA 422 (1977), supra.

 

HELD:  The subsequent trial in absentia deprived petitioner of his right to be heard by himself and counsel. The indispensable requirement for trial in absentia is that it should come after arraignment.  VV.

 

 

            Waiver of the right to be present implies also waiver of the right to present evidence.  Thus, if the accused fails to attend trial (which presupposes arraignment), without any justifiable cause, the prosecution can proceed with the presentation of the evidence, and thereupon, the court may consider the case submitted for decision.   The court will decide the case on the basis only of the prosecution's evidence.  This does not violate the constitutional presumption of innocence because it does not mean that the judgment of the trial court will result in conviction.

 

            So ruled the SC in People v. Salas, 143 SCRA 163 (1986), which further ruled that trial in absentia applies even to capital cases.

 

 

People v. Salas  143 SCRA 163 (1986)

 

Trial in absentia applies even to capital cases

 

F:         Mario Abong was originally charged with homicide in the CFI Cebu but before he could be arraigned, the case was reinvestigated on motion of the prosecution. As a result of the reinvestigation, an amended information was filed, with no bail recommended, to which he pleaded not guilty. Trial commenced but while it was in progress, the prisoner took advantage of the first information filed and succeeded in deceiving the city court of Cebu into granting him bail and ordering his release. The respondent Judge, learning of the trickery, cancelled the illegal bail bond and ordered Abong's re-arrest. But he was gone. Nonetheless, the prosecution moved that the hearing continue in accordance with the constitutional provision authorizing trial in absentia. The respondent Judge denied the motion and suspended all proceedings until the return of the accused. Hence, this petition.

 

HELD:  The doctrine laid down in People v. Avanceña has been modified by Art. IV, sec. 19 [now Art. III, sec. 14(2) of the 1987 Constitution] which allows trial in absentia. The prisoner cannot by simply escaping thwart his continued prosecution and possible eventual conviction provided only that (a) he has been arraigned; (b) he has been duly notified of the trial; and (c) his failure to appear is unjustified. The right to be present at one's trial may now be waived except only at that stage where the prosecution intends to present witnesses who will identify the accused. The defendant's escape will be considered a waiver of this right and the inability of the court to notify him of the subsequent hearings will not prevent it from continuing with his trial.  VV.

 

 

            Trial in absentia was introduced only in the 1973 Constitution to remedy a situation in which criminal prosecution could not move because the accused has either escaped or jumped bail.

 

            In People v. Prieto, 84 SCRA 198 (1978), the SC ruled that trial in absentia does not justify the accused to jump bail.  Just because th Constitution allows trial in absentia does not mean that the accused is now free to waive his right to be present during the trial.  If he does, he runds the risk of having his bail bond forfeited.

 

 

People v. Prieto  84 SCRA 198 (1978)

 

Provision for trial in absentia not a justification for jumping bail

 

F:         For repeated failure of the accused Dario Gamayon to appear, respondent Judge declared the bail bond forfeited and required the bondsmen to produce the accused within thirty days and to show cause why no judgment should be rendered against them. However, on motion of defense counsel, who invoked the last sentence of Art. IV, section 19 [now Art. III, sec. 14(2)] on trial in absentia, respondent Judge reconsidered his order. He argued that "if trial could be conducted after the accused has been arraigned and identified, the conclusion is inescapable that issuing an order of forfeiture of the bail bond is premature." The prosecution filed a petition for certiorari.

 

HELD:  The innovation introduced by the present Constitution goes no further than to enable a judge to continue with the trial even if the accused is not present under the conditions therein specified. It does not give the accused the right to jump bail. VV.

 

 

Gimenez v. Nazareno, 160 SCRA 1 (1988)

 

In trial in absentia accused waives the right to present evidence and confront witnesses

 

F:         Teodoro dela Vega Jr., together with five others, was charged with murder. After arraignment, during which he pleaded not guilty, the case was set for hearing on Sept. 18, 1973 but he escaped. He was tried in absentia. The trial court rendered judgment dismissing the case against his co-accused but it held in abeyance the proceedings against him in order to give him the chance to cross examine the witnesses against him and present evidence. Hence, this petition for certiorari.

 

HELD:  Was the jurisdiction lost when the accused escaped from the custody of the law and failed to appear during the trial? No. As we have consistently ruled, jurisdiction once acquired is not lost upon the instance of parties but continues until the case is terminated. The lower court was correct in proceeding with the reception of evidence but it erred when is suspended the proceedings as to the respondent. The court need not wait for the time until the accused finally decides to appear. To allow this delay is to render ineffective the constitutional provision on trial in absentiaVV.

 

 

 

                        9.  When presence of the accused is a DUTY

 

            In People v. Avancena, 32 O.G. 713, the SC held that (a) the accused has the right to be present during trial;  (b) if he is in the custody of the law, presence in all stage is likewise a duty during (i) arraignment, (ii) entering a plea, and (iii) promulgation of judgment.  This rule however has been modified.

 

As things stand, the following are the rules:

 

            1.  Generally, the accused has the right to be present at all stages the trial (from arraignment to rendition of judgment).

 

            2.  If the accused is in the custody of the law, his presence during the trial is a duty only if the court orders his presence to enable the prosecution witnesses to identify him.  (People v. Salas, infra. reiterating Aquino v. Military Commiission, infra. modifying People v. Avancena, infra.)

 

            3.  Although the accused is not in the custody of the law (and more so if he is in the custody of the law), his presence is required in the following cases:

 

            a)  Arraignment, regardless of the offense;

 

            b) Entering a plea, regardless of whether the plea is guilty or not guilty.

 

            c)  Promulgation of judgment, except that when the judgment is for a light offense, he may be represented by his counsel or a personal emissary.

 

 

 

                                    a.  Arraignment and plea, whether of innocence or of guilt 

 

            Rule 116, Sec. 1.  Arraignment and plea; how made.--

            xxx

            (b)  The accused must be present at the arraignment and must personally enter his plea.  Both arraignment and plea shall be made of record, but a failure to enter of record shall not affect the validity  of the proceedings.

 

 

                                    b.  During trial, for identification

 

People v. Avancena, 32 O.G. 713

 

 

Aquino v. Military Commission No. 2, 63 SCRA 546 (1975)

 

 

People v. Salas, 143 SCRA 163 (1986), supra.

 

HELD: The right to be present at one's trial may now be waived except only at that stage where the prosecution intends to present witnesses who will identify the accused.  VV.

 

                                   

            c.  Promulgation of sentence, unless it is for a light offense, in which case accused may appear by counsel, or a representative (Rule 120, Sec. 6.)      

 

 

            E.  Priviledge against self incrimination

 

            Art. III, Sec. 17.  No person shall be compelled to be a witness against himself.

 

            Any confession or admission obtained in violation of section 17 hereof shall be inadmissible in evidence against him.  [Art. III, Sec. 12 (3)]

 

                        1.  Scope of privilege:  Compulsory Testimonial self-incrimination

 

            The privilege covers only testimonial incrimination obtained compulsorily.  It refers therefore to the use of the mental process and the communicative faculties, and not to a merely physical activity.  If the act is physical or mechanical, the accused can be compelled to allow or perform the act, and the result can be used in evidence against him.

 

            Thus the accused can be required to allow a sample of a substance taken from his body (U.S. v. Tan Teh. 23, Phil. 145 (1912)).

 

U.S. v. Tan Teng. 23, Phil. 145 (1912)

 

F:            This defendant was charged with the crime of rape. He was found guilty of the charge.  He appeals the decision on the ground  that the lower court erred in admitting the testimony of the physicians about having taken a certain substance from the body of the accused while he was confined in jail and regarding the chemical analysis made of the substance to demonstrate the physical condition of the accused with reference to a venereal disease. It was discovered that the rape victim was infected by venereal disease so that the finding of venereal disease in the accused was material to his conviction.

                Upon this information the defendant was arrested and taken to the police station and stripped of his clothing and examined. The policeman who examined the defendant swore from the venereal disease known as gonorrhea. The policeman took a portion of the substance emitting from the body of the defendant and turned it over to the Bureau of Science for the purpose of having a scientific analysis made of the same. The result of the examination showed that the defendant was suffering from gonorrhea.

 

Issue: Whether or not the information that the accused has gonorrhea may be used against him

 

Ruling:  YES.  The accused was not compelled to make any admissions or answer any questions, and the mere fact that an object found on his person was examined: seems no more to infringe the rule invoked, than would the introduction in evidence of stolen property taken from the person of a thief.

            The substance was taken from the body of the defendant without his objection, the examination was made by competent medical authority and the result showed that the defendant was suffering from said disease. As was suggested by Judge Lobingier, had the defendant been found with stolen property upon his person, there certainly could have been no question had the stolen property been taken for the purpose of using the same as evidence against him. So also if the clothing which he wore, by reason of blood stains or otherwise, had furnished evidence of the commission of a crime, there certainly could have been no objection to taking such for the purpose of using the same as proof. No one would think of even suggesting that stolen property and the clothing in the case indicated, taken from the defendant, could not be used against him as evidence, without violating the rule that a person shall not be required to give testimony against himself.

            But the prohibition of compelling a man in a criminal court to be a witness against himself, is a prohibition of the use of physical or moral compulsion, to extort communications from him, not an exclusion of his body as evidence, when it may be material. The objection, in principle, would forbid a jury (court) to look at a person and compare his features with a photograph in proof. Moreover we are not considering how far a court would go in compelling a man to exhibit himself, for when he is exhibited, whether voluntarily or by order, even if the order goes too far, the evidence if material, is competent.

            The prohibition contained in section 5 of the Philippine Bill that a person shall not be compelled to be a witness against himself, is simply a prohibition against legal process to extract from the defendant's own lips, against his will, an admission of his guilt.

            Mr. Wigmore, in his valuable work on evidence, in discussing the question before us, said:

            If, in other words, it (the rule) created inviolability not only for his [physical control] in whatever form exercised, then it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles  a clear reductio ad absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, . . . but testimonial compulsion. (4 Wigmore, sec. 2263.)

            The main purpose of the provision of the Philippine Bill is to prohibit compulsory oral examination of prisoners before trial. or upon trial, for the purpose of extorting unwilling confessions or declarations implicating them in the commission of a crime. (People vs. Gardner, 144 N. Y., 119.)

            The doctrine contended for by appellant would prohibit courts from looking at the fact of a defendant even, for the purpose of disclosing his identity. Such an application of the prohibition under discussion certainly could not be permitted. Such an inspection of the bodily features by the court or by witnesses, can not violate the privilege granted under the Philippine Bill, because it does not call upon the accused as a witness  it does not call upon the defendant for his testimonial responsibility. Mr. Wigmore says that evidence obtained in this way from the accused, is not testimony but his body his body itself.  Glynda.

 

 

            The accused can be ordered to expel the morphine from his mouth (U.S. v. Ong Sio Hong 36 Phil 735, (1917)).

 

 

U.S. v. Ong Sio Hong 36 Phil 735, (1917)

 

            Counsel for appellant raises the constitutional question that the accused was compelled to be a witness against himself. The contention is that this was the result of forcing the accused to discharge the morphine from his mouth.  To force a prohibited drug from the person of an accused is along the same line as requiring him to exhibit himself before the court; or putting in evidence papers and other articles taken from the room of an accused in his absence; or, as in the Tan Teng case, taking a substance from the body of the accused to be used in proving his guilt. It would be a forced construction of the paragraph of the Philippine Bill of Rights in question to hold that any article, substance, or thing taken from a person accused of crime could not be given in evidence. The main purpose of this constitutional provision is to prohibit testimonial compulsion by oral examination in order to extort unwilling confessions from prisoners implicating them in the commission of a crime. (Harris vs. Coats [1885], 75 Ga., 415.)

 

 

            The accused can be made to take off her garments and shoes and be photographed.  (People v. Otadura, 96 Phil 244 (1950)).

 

People v. Otadura, 96 Phil 244 (1950)

 

 

 

            A woman accused of adultery can be compelled to show her body for physical investigation to see if she is pregnant (Villaflor v. Summers, 41 Phil. 62 (1920)).  Viewed against present standards, however, it is possible that this method of determining pregnancy would violate due process as being too barbaric.

 

Villaflor v. Summers, 41 Phil. 62 (1920)

 

F:         The facts are not dispute. In a criminal case pending before the Court of First Instance of the city of Manila, Emeteria Villaflor and Florentino Souingco are charged with the crime of adultery. The court ordered the defendant Emeteria Villaflor, to submit her body to the examination of one or two competent doctors to determine if she was pregnant or not. The accused refused to obey the order on the ground that such examination of her person was a violation of the constitutional provision relating to self-incrimination. Thereupon she was found in contempt of court and was ordered to be committed to Bilibid Prison until she should permit the medical examination required by the court.

 

Issue:  Whether the compelling of a woman to permit her body to be examined by physicians to determine if she is pregnant, violates that portion of the Philippine Bill of Rights

 

Ruling:  The constitutional guaranty, that no person shall be compelled in any criminal case to be a witness against himself, is limited to a prohibition against compulsory testimonial self-incrimination. The corollary to the proposition is that, an ocular inspection of the body of the accused is permissible. The proviso is that torture of force shall be avoided. Whether facts fall within or without the rule with its corollary and proviso must, of course, be decided as cases arise.

            It is a reasonable presumption that in an examination by reputable and disinterested physicians due care will be taken not to use violence and not to embarass the patient any more than is absolutely necessary. Indeed, no objection to the physical examination being made by the family doctor of the accused or by doctor of the same sex can be seen.  Glynda.

 

 

            The taking of footprint sample to see if it matches the ones found in the scene of the crime is allowed (People v. Salas and People v. Sara).

 

            However, making the accused take dictation to get a specimen of her handwriting is not allowed, for this involves the use of the mental process. [Bermudez v. Castillo, 64 Phil. 485 (1937).]

 

Bermudez v. Castillo, 64 Phil. 485 (1937)         

 

F:         In connection with this administrative case, said respondent filed, six letters which, for purposes of identification, were marked as Exhibits 32, 34, 35, 36 and 37. He contends that said six letters are the complainant's, but the latter denied it while she was testifying as a witness in rebuttal.

                Respondent required complainant to copy the letters in her own handwriting in the presence of the investigator. The complainant, refused invoking her right not to incriminate herself. The investigator, upholding the complainant, did not compel her to submit to the trial required, thereby denying the respondent's petition.

 

Issue: Whether or not the complainant may be forced to make a copy of the letters in her own handwriting

 

Ruling:  No.  It would violate her right against self- incrimination.

            The constitution provides: "No person shall be compelled to be a witness against himself." It should be noted that before it was attempted to require the complainant to copy the six documents above-stated, she had sworn to tell the truth before the investigator authorized to receive statements under oath, and under said oath she asserted that the documents in question had not been written by her. Were she compelled to write and were it proven by means of what she might write later that said documents had really been written by her, it would be impossible for her to evade prosecution for perjury.

            The reason for the privilege appears evident. The purpose thereof is positively to avoid and prohibit thereby the repetition and recurrence of the certainly inhuman procedure of compelling a person, in a criminal or any other case, to furnish the missing evidence necessary for his conviction. If such is its purpose, then the evidence must be sought elsewhere; and if it is desired to discover evidence in the person himself, then he must be promised and assured at least absolute immunity by one authorized to do so legally, or he should be asked, one for all, to furnish such evidence voluntarily without any condition. This court is of the opinion that in order that the constitutional provision under consideration may prove to be a real protection and not a dead letter, it must be given a liberal and broad interpretation favorable to the person invoking it.

            In view of the foregoing consideration and holding, as it is hereby held, that the complainant is perfectly entitled to the privilege invoked by her, the respondent's petition is denied.  Glynda.

 

 

            Also requiring  the accused to reenact the crime is not allowed, for this also involves the mental process.

 

 

BARLONGAY CASES:

 

People v. Olvis, 154 SCRA 525

 

F:         Villarojo, Cademas and Sorela were convicted in the lower court of murder for the death of Bagon. Olvis, the alleged principal by inducement, was acquitted. The three accused were convicted on the basis of the extrajudicial confessions executed by them in the presence of a counsel summoned by the NBI to handle appellants' case, and the reenactment done by them of the circumstances surrounding the killing.

 

RULING: The extrajudicial confessions are inadmissible. They were made in the presence of a counsel summoned by the NBI and not of appellants' own choice. He cannot therefore be said to have been acting on behalf of the accused when he lent his presence at the confession proceedings.

            But the accused were denied their right to counsel not once but twice when they were forced to re-enact the crime. Forced re-enactments like uncounselled and coerced confessions come within the ban against self-incrimination. This constitutional privilege has been defined as a protection against testimonial compulsion but this has since been extended to any evidence communicative in nature acquired under circumstances of duress. Essentially, the right is meant to avoid and prohibit positively the repetition and recurrence of the certainly inhuman procedure of compelling a person, in a criminal or any other case, to furnish the missing evidence necessary for his conviction.  Charo.

 

 

People v. Go, 237 SCRA 73

 

F:         After a buy-bust operation accused were arrested by the police.  Upon the presentation of a search warrant, the house of the accused was searched, and several prohibited drugs were seized.  They were charged with and convicted of violation of the Dangerous Drugs law.  They contended that they had not been shown a search warrant.  In concluding that a search warrant had been presented to the accused prior to the search, the trial court relied on a document entitiled “Certificate of Re-conduct of Search”, signed by the accused.

 

ISSUE:  Whether or not such document is admissible in evidence.

 

RULING:  IT CANNOT BE ADMITTED IN ITS ENTIRETY.

            The second paragraph of the Certification amounts to an implied admission that shabu, the marked money, and shabu papaphernalia had been found by the police authorities at the residence of the Go spouses and therefore, subject to the control and custody of the accused (the spouses) and necessarily in their possession.  To this extent, the “Certification” is a declaration against the interest and tacit admission of the crime charged.  The second paragraph of the Certification is a self-incriminatory statment made at a time when the spouses were not assisted by counsel and under circumstances (in the course of or immediately after the search of the residence and seizure of quantities of shabu) which render intelligent waiver of their right against self-incrimination open to serious doubt.

            The Court considers that there is nothing to prevent admission of the “Certification” to substantiate the fact that a search warrant issued by a judge had been brought to the attention of the spouses in the course of the raid or buy-bust operation carried out at their residence and that in the course thereof, no force or intimidation had been exercised upon the spouses.

            Notwithstanding such, the accused were convicted of the crime charged against them.  Bam.

 

 

                        2.  In what proceedings available

 

            The privilege is available in any proceedings, even outside the court, for they may eventually lead to a criminal prosecution.

 

            In Pascual v. Board of Medical Examiners, 28 SCRA 344 (1969), the SC held that the privilege against self-incrimination extends to administrative proceedings which possess a criminal or penal aspect.  In this case, it was held that a doctor who was being investigated by a medical board for alleged malpractice and would lose his license if found guilty, could not be compelled to take the witness stand without his consent.

 

 

Pascual v. Board of Medical Examiners, 28 SCRA 344 (1969)

 

F:         Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court of First Instance of Manila an action for prohibition with prayer for preliminary injunction against the Board of Medical Examiners, now respondent-appellant. It was alleged therein that at the initial hearing of an administrative case  for alleged immorality, counsel for complainants announced that he would present as his first witness herein petitioner- appellee, who was the respondent in such malpractice charge. Thereupon, petitioner-appellee, through counsel, made of record his objection, relying on the constitutional right to be exempt from being a witness against himself. Respondent-appellant, the Board of Examiners, took note of such a plea, at the same time stating that at the next scheduled hearing, on February 12, 1965, petitioner-appellee would be called upon to testify as such witness, unless in the meantime he could secure a restraining order from a competent authority.

                A decision was rendered by the lower court on August 2, 1965, finding the claim of petitioner-appellee to be well-founded and prohibiting respondent Board "from compelling the petitioner to act and testify as a witness for the complainant in said investigation without his consent and against himself."

 

HELD:  Petitioner could suffer the revocation of his license as a medical practitioner, for some an even greater deprivation.

            Why it should be thus is not difficult to discern. The constitutional guarantee, along with other rights granted an accused, stands for a belief that while crime should not go unpunished and that the truth must be revealed, such desirable objectives should not be accomplished according to means or methods offensive to the high sense of respect accorded the human personality. More and more in line with the democratic creed, the deference accorded an individual even those suspected of the most heinous crimes is given due weight. To quote from Chief Justice Warren, "the constitutional foundation underlying the privilege is the respect a government ... must accord to the dignity and integrity of its citizens."

            Thus according to Justice Douglas: "The Fifth Amendment in its Self-Incrimination clause enables the citizen to create a zone of privacy which government may not force to surrender to his detriment."  So also with the observation of the late Judge Frank who spoke of "a right to a private enclave where he may lead a private life. That right is the hallmark of our democracy."  In the light of the above, it could thus clearly appear that no possible objection could be legitimately raised against the correctness of the decision now on appeal. We hold that in an administrative hearing against a medical practitioner for alleged malpractice, respondent Board of Medical Examiners cannot, consistently with the self-incrimination clause, compel the person proceeded against to take the witness stand without his consent.  Glynda.

 

 

            In Galman v. Pamaran, infra, the privilege was held to extend to fact-finding investigation by an adhoc body.

 

 

Galman v. Pamaran, 138 SCRA 274 (1985)

 

A person can be compelled to testify provided he is given immunity co-extensive with the privilege against self- incrimination

 

F:         The respondents led by General Fabian Ver and Major General Prospero Olivas testified before the Agrava Board looking into the killing of former Senator Benigno Aquino. They were subsequently accused of murder in two cases for the killing of Sen. Aquino and Rolando Galman. They were charged as accessories in both. The prosecution offered in evidence the testimony of Ver and Olivas before the Agrava Board, but on the latter's objections, the Sandiganbayan excluded the testimony. The private and public prosecutions filed petitions for certiorari.

 

HELD:  The persons summoned to testify before the Agrava Board were "under investigation for the commission of the offense" within the meaning of Art. III, sec. 12. It is to be noted that the framers of the Constitution did not adopt the Miranda reference to "custodial investigation." The subject matter dealt with and the questioning before the Agrava Board indubitably evinced purposes other than merely determining the surrounding facts and circumstances of the assassination. The respondents were called to determine their probable involvement in the crime. Yet they were not informed or at the very least warned of their right to remain silent and that any statement given by them may be used against them.  The first portion of Sec. 5 of PD 1886 denied them the right to remain silent, and gave power to the Board to punish refusal to testify. The SC said it is not satisfied that when they testified they waived their constitutional right not be compelled to be a witness against themselves, much less their right to remain silent. The SC also said it cannot be contended that the privilege against self- incrimination applies only to criminal prosecutions. Art. III, sec. 17 of the Const. provides that "No person shall be compelled to be a witness against himself."  VV.

 

 

 

Compare People v. Ayson, 175 SCRA 216 (1989), supra.

 

 

                        3.  "Use and Fruit Immunity" v. "Transactional Immunity"

 

            When the State requires testimony to be made before a board or body, it has to grant immunity by means of law to the persons testifying, so as not to violate their right against self-incriminatrion.  This is the only way to reconcile two conflicting values; public interest to get certain relevant information, say, to legislation, that can only be supplied by the testimony of certain persons and the highly primed constitutional right not to make a person a witness against himself.

 

            Through an immunity statute, the state in effect exchanges immunity for the testimony of a witness.  The problem concerns the extent of immunity that the State must grant in order to protect the privilege against self-incrimination.

 

Transactional Immunity

 

            In a transactional immunity, a person is given immunity from prosecution of the crime in connection with which he gave his testimony.  The immunity is from the prosecution, not merely from the use of the testimony.  Thus, even if the guilt of the person testifying can be proven by independent means, he can not be prosecuted anymore.

 

Use and Fruit Immunity

 

            In a use and fruit immunity, a person is exempted from the use of his testimony as well as the leads (fruits) that the testimony opened up in a criminal prosecution arising from what he testified on.  The immunity in this case is from the testimony given.  Thus, if the state can procure evidence, independent of the testimony and its fruits, it can prosecute the person testifying nevertheless.

 

 

History in the United States

 

            In Councilman v. Hitchcock (1892), the SC ruled that the only way to respect the right against self-incrimination is to give transactional immunity; anything less violates the constitutional right.

 

            Thus, Congress in 1893 passed the Compulsory Testimony Act, providing for transactional immunity.

 

            In 1964, the U.S. SC in Murphy v. Waterfront Commission of New York hinted that it was not really necessary to give transactional immunity in order to protect the right against self incrimination.

 

            This gave the U.S. Congress the cue to revise the Compulsory Testimony Act and provide for a "use and fruit immunity".

 

            With the validity of this limited immunity was raised, the SC in Castigas v. U.S. and Zicarelli v. U.S. ruled that the right is amply protected by the use and fruit immunity.

 

 

In the Philippines

 

            There is no fixed rule in the Philippines.  "Transactional immunity" can be found in the following:

 

            Art. XIII, Sec. 18.  The Commission on Human Rights shall have the following powers and functions

            xxx

            (8)  Grant immunity from prosecution to any person whose testimony or possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority.

 

            R.A. 1379 or the Unexplained Wealth Act, Sec. 8, which is of 1950 vintage.

 

                Sec. 18.  Protection against self-incrimination.--  Neither the respondent nor any other person shall be excused from attending and tesfifying or from producing books, papers, correspondence, memoranda and other records on the ground that the testimony or evidence, documentary or otherwise, required of his may tend to incriminate him or subject him to prosecution; but no individual shall be prosecuted criminally for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, documentary or otherwise, except that such individual so testifying shall not be exempt from prosecution and conviction for perjury or false testimony in so tesfifying or from administrative proceedings.  (Republic Act 1379.) 

 

 

            R.A. 6832, Sec. 8. (Davide Commission.)

           

                Sec. 8.  Immunity from Criminal Prosecution.--  The Commission is authorized to grant immunity from criminal prosecution to any person who provides information or testifies in any investigation conducted by it where, upon its evaluation, such information or testimony is necessary and vitalto the investigation.  The immunity thereby granted shall continue to protect the witness who repeats such testimony before the appropriate court when required to do so by the latter.  Should he refuse to repeat such testimony, the immunity granted him shall cease.  (Republic Act 6832.)

 

 

            Use and Fruit Immunity

 

            On the other hand, "use and fruit immunity can be found in P.D. 1886, which created the Agrava Fact Finding Board, and which was the subject-matter of Galman v. Pamaran, 138 SCRA 274 (1985).

 

            In this case, Ver and other high-ranking AFP officials were made to testify before the Agrava Board investigating the double murder of Sen. Aquino and Galman.  Under P.D.1886, every person summoned by the Board has to appear and testify on pain of being held in contempt. Any  testimony made, in turn, was exempted from being "used" in a criminal prosecution.  Despite this however, a case was file against Ver in the Sandiganbayan, and one of the evidence presented was the testimony he made before the Board.  When objected to, the Sandiganbayan sustained the objection.  And so the matter was raised to the SC on certiorari.

 

            The SC held that the testimony could not be used in a subsequent proceeding.  it hinted that were it not for the provision in the decree conmpelling attendance and testimony on pain of being held in contempt, the accused could have invoked the right against self-incrimination.  But since the state needed the testimony, it gave them immunity and so now, the State must honor its obligation and disallow the use of the testimony in the criminal prosecution.

 

Galman v. Pamaran, 138 SCRA 274 (1985), supra.

 

HELD:  Immunity statutes may be generally classified into two: one, which grants "use immunity" and the other, which grants what is known as "transactional immunity." The distinction between the two is: "Use immunity" prohibits use of a witness' compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. On the other hand, "transactional immunity" grants immunity to the witness from prosecution for an offense to which his compelled testimony relates. PD 1886, sec. 5 grants merely immunity from use of any statement given before the Board, but not immunity from prosecution by reason or on the basis thereof.  VV

 

 

            Sec. 5, PD No. 1886

 

                Sec. 5.  No person shall be excused from attending and tesfifying or from producing books, records, correpondence, documents, or other evidence in obedience to a subpoena issued by the Board on the ground that his testimony or the evidence required of him may tend to incriminate him or subject him to penalty or forfeiture; but his testimony or any evidence produced by him shall not be used against him in connection with any transaction, matter or thing concerning which he is compelled, after having invoked his privilege against self-incrimination, to testify or produce evidence, except from prosecution and punishment for perjury committed in so testifying, nor shall he be excempt from demotion or removal from office.

 

 

 

                        4.  Exclusionary rule

 

            Art. III, Sec. 12.  xxx

            (3)  Any confession or admission obtained in violationof this or Section 17 hereof shall be inadmissible in evidence against him.            

 

            The paradigmatic application of the exclusionary rule is a traditionally coerced confession, and not so much on uncounselled statement.  A fortiori, testimony forced out of a person cannot be used in evidence against that person.

 

 

                        5.  Effect of denial of the privilege by court

 

            When the privilege against self-incrimination is violated outside of court, say, by the police, then the testimony, as already noted, is not admissible under the exclusionary rule. 

 

            When the privilege is violated by the court itself, that is, by the judge, the court is ousted of its jurisdiction, all its proceedings are null and void, and it is as if no judgment has been rendered.  A classic case is Chavez v. Court of Appeals, 34 SCRA 663 (1968).

 

 

Chavez v. Court of Appeals, 34 SCRA 663 (1968)

 

F:         The thrust of petitioner's case presented in his original and supplementary petitions invoking jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed from imprisonment upon the ground that in the trial which resulted in his conviction  he was denied his constitutional right not to be compelled to testify against himself. There is his prayer, too, that, should he fail in this, he be granted the alternative remedies of certiorari to strike down the two resolutions of the Court of Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said court to forward his appeal to this Court for the reason that he was raising purely questions of law.

                Accused Chavez was made to testify as a witness for the prosecution without him being considered a state witness inspite of objections by his counsel.

                Roger Chavez was found guilty. The court had this to say: "Roger Chavez does not offer any defense. As a matter of fact, his testimony as witness for the prosecution establishes his guilt beyond reasonable doubt."  The trial court branded him "a self- confessed culprit".

 

Issue: Whether or not  Chavez right against self-incrimination was violated

 

Ruling:  YES

            The right agianst self-incrimination is "not merely a formal technical rule the enforcement of which is left to the discretion of the court"; it is mandatory; it secures to a defendant a valuable and substantive right;  it is fundamental to our scheme of justice.

            The constitutional proscription was established on broad grounds of public policy and humanity; of policy because it would place the witness against the strongest temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress every species and degree of which the law abhors. 

            Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand  with undiluted, unfettered exercise of his own free, genuine will.

            Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the defendant."

            Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is shot at him,  and accused may altogether refuse to take the witness stand and refuse to answer any and all questions.  For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him.

           

            xxx  With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has waived his right. He did not volunteer to take the stand and in his own defense; he did not offer himself as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner nevertheless answered the questions inspite of his fear of being accused of perjury or being put under contempt, this circumstance cannot be counted against him. His testimony is not of his own choice. To him it was a case of compelled submission. He was a cowed participant in proceedings before a judge who possessed the power to put him under contempt had he chosen to remain silent. Nor could he escape testifying. The court made it abundantly clear that his testimony at least on direct examination would be taken right then and thereon the first day of the trial.

            The course which petitioner takes is correct.  Habeas corpus is a high prerogative writ.  It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded.  Such defect results in the absence or loss of jurisdiction  and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated.  That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpusHabeas corpus is proper to challenge a conviction where the consitutional rights of the accused were violated.

            A court which denies the accused of his constitutional rights is ousted of its jurisdiction.  The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release of habeas corpus Glynda.

 

 

            Notes on the case:  In this case, the accused Chavez was compelled by the judge with the threat of being held in contempt to take the witness stand, in spite of his objection that he had the right to remain silent and not to be a witness against himself.  And so he took the witness stand and was convicted by qualified theft.  He appealed but the lawyer failed to file the appellant's brief and so the appeal was dismissed, the judgment became final and executory, and he served his sentence.  Years later, Chavez went to the SC on habeas corpus, contending that his convictioin was void because it was rendered on the basis of evidence obtained in the violation of his right against self- incrimination.  The SC granted the petition and released him.

            Habeas Corpus, as shown by this case, is an extraordinary post-conviction, mid-sentence, remedy.  The petition for habeas corpus is such that it inquires into all questions of illegal detention.  When the judge compelled the accused to take the witness stand, he was ousted of his jurisdiction and all subsequent proceedings became void.  Ultimately, the judgment of conviction and even the sentence were likewise void, thus making the detention of Chavez illegal, and thus actionable by habeas corpus.

            The case also illustrates the difference between the ordinary witness and the accused.  A witness can be conmpelled to take the stand; he can only object to the questions as they come, invoking his right against self-incrimination.

            But in the case of the accused, he cannot even be made to take the witness stand, for the only purpose of such is to incriminate him.

            Of course, the moment the accused agrees to take the stand, he is deemed to have waived his right, and must now thus submit himself to cross-examination.

 

           

            E.  Right to an impartial tribunal and trial of civilians by military courts

 

Animas v. Minister of National Defense, 146 SCRA 406 (1986)

 

F:            This petition challenges the jurisdiction of a military tribunal to try twelve accused persons, only one of whom is in the military, for the offense devoid of any national security or political complexion and committed long before the proclamation of martial law,

                The petitioners were charged with murder in connection with the alleged killing of Yanson, a political leader,during the November 11 elections.

                The accused were arrested almost a year later, on September 21, 1972 after martial law was proclaimed. It was only in 1974 that a "summary preliminary investigation" was conducted by a PC captain belonging to the Judge Advocate General Service. The petitioners were recommended for prosecution before the Military Tribunal, considering that one of them, petitioner Sgt. Rodolfo Animas is a military personnel. Thereafter, the Judge Advocate General filed the corresponding charge sheet, but he modified the crime charged from "Murder" to "Violation of Section 878 of the Revised Administrative Code" in Relation to Section 2692 of the same Code and Presidential Decree No. 9, " Illegal Possession of Firearms with Murder."

                On February 16, 1978, the Minister of National Defense referred the case to the Military Tribunal's Branch of the Judge Advocate General's Office (JAGO) which in turn assigned the same to respondent Military Commission No. 27.

 

Issue: Whether or not Military Commission No. 27 is without jurisdiction over the criminal case

 

Ruling: The military court is without jurisdiction.

            We apply the rule in Rolando A. de Guzman v. Hon. Alejandro R. Leopando, et al, (G.R. No. 62798, December 22, 1983 and March 13, 1984) where the lone military personnel was ordered tried together with 19 civilians accused before a civil court. It is also clear from the records that the acts for which Sgt. Animas was charged had nothing to do with the performance of official duty.

            The crime for which the petitioners were charged was committed on November 10, 1971 long before the proclamation of martial law. There was no question about the case being prosecuted by civilian fiscals and tried by civil courts at the time. Now that it is already late 1986, and martial law is a thing of the past, hopefully never more to return, there is no more reason why a murder committed in 1971 should still be retained, at this time, by a military tribunal.  Glynda.

 

 

Olaguer v. Military Commission No. 34, 150 SCRA 144

 

Military trial of civilians void even under Martial Law if the civil courts are open

 

F:         Petitioners were found guilty of subversion by the respondent military commission and sentenced to death. They filed a petition for habeas corpus, certiorari, prohibition and mandamus before the SC, questioning the jurisdiction of the military tribunal.

 

HELD: In Aquino v. Military Commission (1975), the SC held that "Martial law creates and exception to the general rules of exclusive jurisdiction, and renders offenses against the laws of war as well as those of a civil character, triable by military tribunals.xxx" Due process, however demands that in all criminal cases prosecutions, the accused shall be entitled to, among others, a trial. As explained by Justice Teehankee in his dissenting opinion in Aquino v. Military Commission supra: "Judicial power is vested by the Constitution exclusively in the SC and insuch inferior courts as are established by law. Judicial power exists only in the courts which have the exlcusive power to hear and determine those matters which affect the life or liberty or property of a citizen." Since we are not an enemy occupied territory and even on the premise that martial continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed by them which are properly cognizable by the civil courts. 

            xxx

            "The presiding officer at a court martial is not a judge whose objectivity and independence are protected by tenure and undiminshed salary and nurtured by the judicial tradition, but is a military officer.  Substantially different rules of evidence and procedure apply in military trials.  Apart from these differences, the suggestion of the possibility of influence on the actions of the court-martial by the officer who convenes it, selects its members and the counsel on both sides, and who usually has direct command and authority over its members is a pervasive one in military laws, despite strenuous efforts to eliminate the danger.  VV.   

 

 

Cruz v. Ponce-Enrile, 160 SCRA 702 (1988)

 

F:         Habeas corpus proceedings were commenced in this Court on October 1, 1986  to test the legality of the continued detention of some 217 so-called "political detainees  arrested in the nine-year span of official martial rule and committed to the New Bilibid Prisons in Muntinlupa. All had been made to stand trial for common crimes  before various courts martial;  if any of these offenses had any political color, this had neither been pleaded nor proved.

                Of the 217 prisoners, 157 are civilians, and only 26 confirmed as military personnel.

 

Issue: Whether or not military courts have jurisdiction over civilians

 

Ruling:  No

            As held in Olaguer:  A military jurisdiction or tribunal cannot try and exercise jurisdiction, even during the period of martial law, over civilians for offenses allegedly committed by them as long as the civil courts are open and functioning, and that any judgment rendered by such body relating to a civilian is null and void for lack of jurisdiction on the part of the military tribunal concerned

            The fact cannot be ignored, however, that crimes appear to have been committed, and there are accusations against herein petitioners for those offenses. Olaguer cannot and does not operate to absolve the petitioners of these charges, or establish that the same are baseless, so as to entitle them to immediate release from detention. It is not to be forgotten that the victims in offenses ascribed to the petitioners have as much interest as the State has to prosecute the alleged authors of the misdeeds. Justice will be better served if the detention of such of the petitioners as are not hereby ordered released or excepted, is continued until their cases are transferred to the ordinary courts having jurisdiction, and the necessary informations have been filed against them therein, as has already been done in the case of petitioners Imperial D. Usman and Samu Gumal.  The State should be given a reasonable period of time to accomplish this transfer, at which time the petitioners may apply for bail for their temporary release.

            The Solicitor General not unreasonably anticipates questions to arise as to the availability of certain defenses to the petitioners upon their prosecution before the civil courts. It seems evident, however, that no breach of the constitutional prohibition against twice putting an accused in jeopardy of punishment for the same offense  would result from the retrial of the petitioners" cases, for the simple reason that the absence of jurisdiction of the courts martial to try and convict the petitioners prevented the first jeopardy from attaching.  Valid previous proceedings are required in order that the defense of double jeopardy can be raised by the accused in the second prosecution.  Glynda.

 

 

 

            G.  Bills of attainder--  Legislative adjudication of guilt

 

Bill of Attainder

 

            A "bill of attainder" is a law which substitutes the legislative determination of guilt for a judicial determination.  Through a statute, the legislature finds individuals or groups guilty, without the benefit of being proven so in court.

 

            A bill of attainder is of two kinds:  (i) bill of attainder proper (legislative imposition of the death penalty) and (ii) bill of pains and penalties (imposition of a lesser penalty).

 

            In People v. Ferrer, 48 SCRA 382 (1972), the Anti-Subversion Law (RA 1700) which declared the Communist Party of the Philippines a clear and present danger to Philippine security, and thus prohibited membership in such organization, was contended to be a bill of attainder.  The SC, however, dismissed the contention, holding that although the law mentions the CPP in particular, its purpose is not to define a crime but only to lay a basis or to justify the legislative determination that membership in such organization is a crime because of the clear and present danger to national security.

 

 

People v. Ferrer, 48 SCRA 382 (1972)

 

F:         Posed in issue in these two cases is the constitutionality of the Anti-Subversion Act, which outlaws the Communist Party and other "subversive associations", and punishes any person who "knowingly,  willfully and by overt acts affiliates himself, with, becomes or remains a member," of the Party and of any other similar "subversive" organization.

 

ISSUE: W/N this law is a bill of attainder. 

 

HELD:  NO

            A bill of attainder is a legislative act which inflicts punishment without trial.  Its essence is the substitution of a legislative for a judicial determination of guilt.  The constitutional ban against bill of attainder  serves to implement the principle of separation of powers by confining legislatures to rule-making and thereby forestalling legislative usurpation of the judicial function.

            When the Act is viewed  in its actual operation, it will be seen that it does not specify the Communist Party of the Phils (CPP) of the members thereof for the purpose of punishment.  What it does is simply to declare the Party to an organized conspiracy  for the overthrow of the Government for the purposes of the prohibition against membersip in the outlawed organization.   The term "CPP" is used solely for definition purposes.  In fact the Act applies not only to the CPP but to "any other organizatuiion  having the same purposes and their successors".  Its focus is not on individuals but on conduct.

            Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more would suffice to secure their punishement.  But the undeniable fact is that their guilt still has to be judicially established.  The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined with the specific intent to further its basic objectives.  Suzette.

 

 

            H.  Right to a speedy disposition of cases

 

            Art. III, Sec. 16.  All persons shall have the right  to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies. 

 

            Art. VIII, Sec. 15.  (1)  All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from the date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all lower courts.

            (2)  A case or matter shall be deemed submitted for decision or resolution upon the submission of the last pleading, brief, or memorandum required by the Rules of Court or by the court itself.

            (3)  Upon the expiration of the corresponding period, a certification to this effect signed by the Chief Justice or the presiding judge shall forthwith be issued and a copy thereof attached to the record of the case or matter, and served upon the parties.  The certification shall state why a decision or resolution has not been rendered or issued within said period.

            (4)  Despite the expiration of the applicable  mandatory period, the court, without prejudice to such responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter submitted thereto for determination, without further delay.

 

 

            Art. VII, Sec. 18.  xxx

            The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision within thirty days from its filing.

 

            Art. IX, A, Sec. 7.  Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submision for decision or resolution.  A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself.  Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.

 

            The right to a speedy disposition of cases complements the right to a speedy trial.  After the case has been submitted for decision, so that technically the trial stage is terminated, the Constitution mandates that the judicial, quasi- judicial or administrative body or tribunal must decide the case consistent with the right of the accused to a speedy disposition of his case.

 

            To carry out this mandate, the Constitution in several other places provides periods for deciding a case:

 

            The Supreme Court has to decide cases within 24 months from the date of submission of the case for decision which is the date of filing of the last pleading [Art. VIII, Sec. 15 (1).]

 

            In cases to challenge the validity of the proclamation of martial law or the suspension of the privilege of the writ, the period is 30 days counted from the date the case was filed (not the date it was submitted for decision). (Art. VII, Sec. 18, par. 3.)

 

            If it fails to decide a case within the period because it could not garner the necessary majority to render a decision, then, (a)  if the case is an appealed case, the judgment appealed from is deemed affirmed, except if (i)  the case is one in which the lower court declared the law unconstitutional, in which event the presumption of constitutionality applies, and (ii) the case is a criminal case, in which the event conviction is reversed; and (b)  if the case is an original petition, the petition is deemed dismissed.  (Rules of Court)

 

            In the case of the Court of Appeals, the period to decide is 12 months from the date of submission, unless reduced by the SC, with the same rule in case the majority required to render a decision is not met.  [Art. VIII, Sec. 15 (1)]

 

            Trial courts have 3 months to decide.  Failure to decide does not affect the case, but the judges are subject to administrative sanctions.  (Art. VIII, Sec. 15.)

 

            Constitutional Commissions (Civil Service, Comelec and COA), which are quasi-judicial or administrative tribunals, are given 60 days from the date of submission to decide a case.  (Art. IX,.A, Sec.7.)

 

 

 

III.  SUBSTANTIVE RIGHTS UNDER THE DUE PROCESS CLAUSE

 

 

            A.  What acts cannot be criminalized

 

                        1.  Mere beliefs and aspirations

 

            Art. III, Sec. 18.  (1)  No person shall be detained solely by reason of his political beliefs and aspirations.

 

                       

                        2.  Debts and civil obligations

 

            Art. III. Sec. 20.  No person shall be imprisoned for debt or non-payment of a poll tax.

 

 

           What the law prohibits is imprisonment for non-payment of a contractual obligation.

 

            When one is convicted of estafa and sent to prison, the imprisonment is not for the non- payment of debt but for the deceit or abuse of confidence employed by the convict.

 

            Thus, in Lozano v. Martinez, 146 SCRA 123 (1986), the SC again upheld Batas Blg. 22 (Bouncing Checks Law) as not unconsitutional for being violative of the rule against non- imprisonment for debt.  It is true that under this law deceit is not necessary.  It is, however, a valid exercise of the State of its power to determine what acts constitute a crime.

 

            What the Consitution further prohibits is imprisonment for  non-payment of poll tax, which is a tax imposed on certain persons regardless of their property or business.  The prohibition does not apply to non-payment of property taxes and taxes on privilege.

 

 

Lozano v. Martinez, 146 SCRA 323 (1986)

 

F:         BP 22 punishes any person "who makes or draws and issues any check on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of said check in full upon presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds xxx" Petitioners challenged the constitutionality of BP 22 on the following grounds: 1) It offends the constitutional provision prohibiting imprisonment for debt; 2) it impairs freedom of contract; 3) it contravenes the equal protection clause; 4) it unduly delegates legislative and executive powers; and 5) its enactment is flawed because the Interim Batasan prohibited amendment of the bill on 3rd reading.

 

HELD:  The gravamen of the offense punished in BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the non- payment of an obligation which the  law punishes. The law punishes the act not as an offense against property but as an offense against public order. Recent statistics show that one third of the entire money supply of the country consists of currency in circulation. These demand deposits in the banks constitute the funds against which commercial papers are drawn. The amount concerned justifies the legitimate concern of the state in preserving the integrity of the banking system. VV.

 

BARLONGAY CASE:

 

Caram Resources Corp. v. Contreras, 237 SCRA 725

 

F:         This is a verified complaint filed by Caram Resources Corporation and Tejada against Judge Contreras of Branch 61 MTC Makati for gross ignorance of the law and gross misconduct.  This was allegedly committed by Respondent Judge in relatin to the criminal cases  filed by Caram against a certain Teresita Dizon for violation of BP22.  Respondent Judge handed down a decision acquitting Dizon on the ground of reasonable doubt.  One of his ratiocinations to support his decision is that the application of the jurisprudence regarding BP 22 would violate the cardinal rule under the Constitution that no person shall be imprisoned for failure to pay his debt, though he do not question the constitutionality of the law. 

 

ISSUE:  W/N the judge was guilty of the charge.

 

HELD:  YES

            The facts irretrievably brought the accused within the purview of  BP 22 and respondent was bound by his oath to apply the law.  He was not at liberty to ignore it. His decision exposed him either to ignorance of the law and the jurisprudence built thereon or simply ignored or  disregarded the above pronouncemets of this Court and chose to make his own.  It is his duty to apply the general law to particular instances under the Canon of Judicial Ethics.  This Court has the last word on what the law is and that its decisions applying or interpreting the law or the Constitution forms part of the legal system of the land, all other courts should take their bearings from the decisions of the Court.

            As show in his ratiocination, respondent could not hide his bias against Caram, whose business practice he loath.  Such expression deviates from the nor of conduct which is essential in the fair and impartial administration of justice.  Suzette.

 

 

                        3.  Acts which when done were innocent

 

            Art. III, Sec. 22.  No ex post facto law or bill of attainder shall be enacted.

 

Ex Post Facto Law

 

          An "ex post facto law" is a law that seeks to punish an act which, when committed, was not yet a crime or was not as heavily punished.  It is a law that retroacts to the day of the act so as to cause prejudice to the person performing the act.  Its unfairness consists in the fact that the person could not have known the act was criminal, and thus could not have avoided the crime.  When a law is more favorable to the accused, however, it is allowed to retroact.

 

In re Kay Villegas Kami, Inc., 35 SCRA 428

 

F:         This petition for declaratory was filed by Kay Villegas Kami Inc., claiming to be a duly  recognized non-stock and non-profit corporation created under the laws of the land, and praying for the detremination of the validity of Sec. 8, RA 6132 and a declaration of petitioner's right s and duties thereunder. Petitioner claims that the challenged provision constitutes an ex post facto law.

 

ISSUE:  W/N it is an ex post facto law.

 

HELD:  NO

            An ex post facto law is one which:

            1.  Makes criminal an act done before the passage of the law which was innocent when done, and punishes such an act;

            2.  Aggravates a crime , or makes it greater than it was, when committed;

            3.  Changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed;

            4.  Alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense;

            5.  Assuming to regulate civil rights and remedies only, in  effect imposes penalty or deprivation of a right for something which when done was lawful; and

            6.  Deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty. [Quoting Mekin v. Wolfe, 2 Phil. 74 (1902)] 

            This constitutional prohibition refers  only to criminal laws which are given retroactive effect.

            While it is true that Se. 18 penalizes  a violation of any provisin of  RA 6132 including Sec. 8(a)  thereof, the penalty is imposed only for acts committed after the approval of the law and not those perpetrated prior thereto.  There is nothing in the law that remotely insinuates that its  provisions  shall apply to acts carried out prior to its approval.  Suzette.

 

 

            B.  What punishments cannot be imposed

 

                        1.  Involuntary servitude

 

            Art. III, Sec. 18 (2)  No involuntary sevitudes in any form shall exist, except as a punishment for a crime whereof the party shall have been convicted. 

 

 

                        2.  Excessive fines

 

            Art. III, Sec. 19.  (1)  Excessive fines shall not be imposed. nor cruel, degrading or inhuman punishment inflicted.  Neither shall the death penalty be imposed, unless for compelling reasons involving heinous crimes, the Congress hereafter provides for it.  Any death penalty already imposed shall be reduced to reclusion perpetua

 

 

People v. De la Cruz, 92 P 906 (1953)

 

 

People v. Dacuycuy, 173 SCRA 90 (1989)

 

F:         Celestino Matondo, Segundino Caval and Cirilo Zanorio, public schools officials of Leyte were charged  before the MTC for violation of RA 4670.  Upon arraignment , the accused pleaded not guilty.  Immediately thereafter, they orally moved to quash the complaint for lack of jurisdiction over the offense allegedly  due to the correctional nature of the penalty of imprisonment prescribed for the offense.  This motion was denied.  A MFR was filed on the same ground but with the further allegation that the facts charged do  not constitute an offense considering  that Sec. 32 of the law  is null and void  for being unconstitutional for the ff reasons: (1) It imposes a cruel and unusual punishment, the term of imprisonment being unfixed and may rn to reclusiion perpetua; and (2) It also constitutes an undue delegation of legislative power, the duration of the penalty of imprisonment being solely left to the discretion of the court as if the latter were the legislative department of the Government.  MFR denied.

 

ISSUE:  W/N Sec. 32 ( penal provision) of the law is unconstitutional.

 

HELD:  YES

            The rule is established beyond question that a punishment authorized by a statute is not cruel or unusual or disproportionate to the nature of the offense unless it is barbarous one unknown to the law or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community.  That the penalty is grossly disproportionate to the crime is an insufficient basis to declare law unconstitutional on the ground that it is cruel and unusual.  The fact that the punishment authorized by the statute is severe does not make it cruel or unusual.  In addition , what degree of disproportion the Court will consider as obnoxious to the Constitution has  still to await appropriate determination in due time since no decision has as yet been struck down a penalty fro being " cruel and unusual" or " excessive".

            It is also submitted that RA 4670 vests in the courts the discretion, not to fix the period of imprisonment, but to choose which of the alternative penalties shall be imposed. What valid delegation presupposes  and sanctions is an exercise of discretion to fix the length of service of the term of imprisonment which must be encompassed within specific or designated limits provided by law, the absence of which designated limits will constitute such exercise as an undue delegation of legislative power.

            Sec. 32 of the law provides for an indeterminable period , with neither a minimum nor a maximum duration having been set by the legislative authority.  The courts are thus given a wide latitude of discretion to fix the term of imprisonment , without even the benefit of any sufficient standard, such that the duration thereof may range from one minute to the life span of the accused.  This cannot be allowed.  It vests in the courts a power and a duty essentially legislative in nature and which, as applied to this case, does violence to the rules on separation of powers as well as the non-delegability of legislative powers.  Thus, the presumption of constitutionality has to yield.  Suzette.

 

 

                        3.  Cruel, degrading and inhuman punishments

 

            Art. III, Sec. 19.  (1)  Excessive fines shall not be imposed. nor cruel, degrading or inhuman punishment inflicted.  Neither shall the death penalty be imposed, unless for compelling reasons involving heinous crimes, the Congress hereafter provides for it.  Any death penalty already imposed shall be reduced to reclusion perpetua. 

            Id., Sec. 12.  xxx

            (2)  No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him.  Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

           

 

            Assuming that judgment has been rendered and the accused has been convicted the Constitution now further prescribes certain standards as to the punishment that can be meted out.  After all, due process prohibits barbaric and disproportionate penalties.

 

            The employment of physical, psychological or degrading punishment against any prisoner or detainee, or the use of substandard or inadequate penal facilities under subhuman conditions, shall be dealt with by law.  [Art. III, Sec. 19 (2).]

 

            In 1935, the prohibition was against "cruel and unusual"  penalty, in 1973; it was against "cruel or unusual " penalty; in 1987, the prohibition is against "cruel, degrading or inhuman" punishment.  The purpose in changing the phraseology is to allow for experimentation, and not to fix the concept of what is cruel to the standards of the present civilization, or those of antiquity.  This notion is supposed to expand and grow, so that what today is considered as acceptable may in the next generation be deemed as cruel penalty.

 

            Whether the cruelty of a punishment depends on its form or whether it depends on its severity has been ambivalently answered by the SC:

 

            In People v. dela Cruz, 92 Phil. 900 (1953) the SC ruled that it was the form of punishment as fixed in antiquity (pillory desembowelment, etc.) and not its severity, that constituted "cruel and unusual" penalty under the 1935 Constitution.  Thus a disproportionate penalty (10 years imprisonment for theft) is not cruel or unusual because it is only a matter of severity of an acceptable form of punishment (imprisonment).

 

            The SC spoke in a different way in People v. Borja  91 SCRA 340 (1979), Borja was sentenced and he served at the national penitentiary for 20 years before the case came to the SC.  The Court said that Borja had been living in the shadow of death.  Although the sentence was initially valid, it had become cruel by the lapse of time.  And yet, this was a form of penalty that was neither cruel nor unusual.

 

 

People v. Munoz, 170 SCRA 107 (1989)

 

F:         The accused are four of the 11 bodyguards of a mayor who killed three persons on suspicion that they were cattle rustlers. They were found guilty of murder. Three appealed to the SC which found them equally liable for the killing. The penalty for murder under the RPC is reclusion temporal to death. The question concerns the penalty to be imposed in view of Art. III, sec. 19 which provides that "Neither shall the death penalty be imposed, unless for compelling reasons involving heinous crimes, Congress provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua."

 

HELD:  Art. III, section 19 does not change the periods of the penalty prescribed by Art. 248 of the RPC except insofar as it prohibits the imposition of the death penalty adn reduces it to reclusion perpetua. The range of medium and minimum penalties remain the same. VV.

 

 

People v. Lubreo, 200 SCRA 11 (1991)

 

F:         A complaint for homicide was filed with MTC of Del Carmen, Surigao del Norte, charging Remelito Lubreo along with crime of Homicide in connection with the killing of Mamerto Sanico.  Judge Gorgolon of said court conducted both the preliminary investigation and preliminary examination. Thereafter, he forwarded  the records of the case to the Office of Provincial Fiscal.  The fiscal conducted his own PI and on the basis thereof, he filed an information for murder not only against remelito but also against Lucresio Lubreo. Trial Court find them guilty of the crime charged.

 

ISSUE:  W/N the constituional presumption of innocence in favor of Lucrecio has been overturned by the prosecution 

 

HELD:  NO. 

            An accused is presumed innocent until the contrary is proved.  The burden of proof is upon the prosecution  and until such burden is sufficiently discharged , the accused continues to enjoy the presumption of innocence.  In the instant case, the lower court convicted  Lucrecio on the basis of its conclusion that he was positively identified by witnesses Nenita Monter and Epifanio Pangatungan as one of the assailants, and that therefore, his defense of alibi  would not prosper. Unfortunately, the testimonies of the abovementioned witnesses did not categorically stated or proved that Lucrecio took part in hacking the victim. 

            Though Monter categorically stated  in her direct examination that she saw the accused Lucresio hacking the victim, in the "re-enactmment", she however candidly informed the court Lucresio was just standing by and she could not remmenber as to who actually hacked the victim.  From her version, the participation of Lucrecio is at one enveloped inserious doubt.  It is worse in the case of Pangatungan.  While he stated that "Lucrecio abetted in hacking as if they will come one after the other in  hacking his mind (sic) and the neck", he never elaborated as to what "abetted in hacking " means.  He could not even specify the part of the body  of Mamerto which was hit by Lucrecio. 

            There is evidently insufficient evidence to show the actual participation of Lucresio in teh crime.  There being no evidence of conspiracy, he cannot be held for the acts of his co- appellant.  Suzette.

 

 

                        4.  Secret detention places, solitary, incommunicado and other forms of detention and the use of substandard or inadequate penal facilities

 

 

            Art. III, Sec. 12.  xxx

            (2)  No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him.  Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

 

            Id., Sec. 19.  xxx

            (2)  The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.      

 

 

                        5.  Indefinite Imprisonments

 

People v. Dacuycuy, 173 SCRA 90 (1989), supra.

 

 

            C.  The protection against double jeopardy

 

            Art. III, Sec. 21.  No person shall be twice put in jeopardy of punishment for the same offense.  If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

 

Mirasol Notes:

 

Elements of double jeopardy, (Rule 117, Sec 7; People v. Obsania, 23 SCRA 249 (1968):

 

            (1)  Court of competent jurisdiction;

            (2)  A Complaint or Information sufficient in form and substance to sustain a conviction;

            (3)  Arraignment and plea  by the Accused;

            (4)  Conviction, acquittal, or dismissal of the case without the express consent, of the           accused.

 

Subsequent prosecution is barred for the following:

 

            (1)  Same offense

            (2)  Attempt of the same offense

            (3)  Frustration of the same offense

            (4) Offense necessarily included in the 1st offense (All the elements of the 2nd      constitute some of the elements of the 1st offense)

            (5) Offense that necessarily includes the 1st offense (All the elements of the 1st      constitute some of the elements of the 2nd offense)

 

Exceptions to no. 5:

 

            (1)  The graver offense developed die to "supervening facts" arising from the same act or omission constituting the former charged.

 

            Thus, in Melo v. People, 85 Phils. 766 (1950), the SC allowed the amnedment of the information from its original cahrge of frustrated homicide, because after the filing of the information, the victim died.

 

            (2)  The facts constituting the graver charge became known or were discovered only after the filing of the former complaint or information.

 

            This overrules People v. Yorac, where the SC disallowed the amendment of the information from slight physical injuries to frustrated murder after the prosecution subjected the victim to another medical examination and found a wound, that it was the fault of the prosecution if they had an incompetent medical examination.

 

            (3)  The plea of guilty to the lesser offense was made without the consent of the fiscal and the offended party.

 

Identity of offenses and identity of act

 

            When an act gives rise to two or more offense which are punished by the same authority, and an individual is convicted, acquitted, or the case dismissed without his consent, of one of these offense (Crime A), there is no double jeopardy if he is charged of another offfense (Crime B) flowing from the same act.  Double jeopardy arises only when he is again charged of that same offense (Crime A).  Thus, this is called double jeopardy by "identity of offenses".

 

            But when an act which give rise to two or more offenses is punished by two different authorities (a law and an ordinance), then if an individual is convicted, acquitted, or the case dismissed without his consent, of any of these offenses punished by one authority (Crime A by law), even if he is charged of another offense which is punished by the other auhtority (Crime B by ordinance), there is double jeopardy, because both offenses, one punished by a law and the other punished by an ordinance, flowed from the same act.  Thus, this is called double jeopardy by "identity of act."

 

            Sum:  If only a law in involved, there is double jeopardy only when there is an identity of offenses.  But is a law and an ordinance are involved, there is double jeopardy when there is an identity of act.

 

Identity of Offenses:

 

            If a married  man maintains as concubine a married woman not his wife, the man is guilty of both concubinage and adultery.  From the same act (cohabiting with the married woman), two offenses arise.  And yet he can be prosecuted for both because, the two offenses coming from the same authority, there is no identity of offenses.

 

Identity of Act:

 

            People v. Relova, 48 SCRA 292 (1987), Relova was prosecuted under an ordinance of Batangas City for the use of wiring to tap electricity without permission from the local authorities, but the case was dismissed because the crime has prescribed.  So the fiscal filed a case for theft of electricity under the RPC.  The SC ruled there was double jeopardy already, and so the second case could no longer be filed.  For although the offenses were different, both flowed from the same act.  And in this case, the act was punished by a law and an ordinance.

 

Loss of Jurisdiction:  No double jeopardy

 

            If the court has no jurisdiction, or was ousted of its jurisdiction beccause it violated the right to due process of the parties, the decision is null and void, the accused may again be charged.

 

            In People v. Bocar, 138 SCRA 166 (1985), the SC, held that the move by the trial court of summarily dismissing a criminal case for theft on the ground that it merely involved a question of ownership deprived the prosecution of due process by denying it the chance to introduce its evidence.  This ousted the court of its juridsiction.

 

            In Galman v. Sandiganbayan, 144 SCRA 43 (1986), the SC declared the criminal prosecution of the 26 accused in the Aquino-Galman double murder case a "mistrial" after the SC commission found that the Sandiganbayan justices and the Tanodbayan prosecutors had been summoned by the President and instructed on how to conduct the trial.  Due process is a right not only of the accused but also of the State.  Once the court deprives either party, which in this case is the State, of a fighting chance, then it is ousted from its jurisdiction, and double jeopardy would not apply.  Thus, the accused were ordered retried.

 

 

                        1.  Two situations contemplated

 

People v. Relova 148 SCRA 292 (1987)

 

F:         Manuel Opulencia was charged wiht violation of Ordinance No. 1 series of 1974 of Batangas City prohibiting the installation of electric wiring devices without authority from the city government. He admitted installing the electric wiring devices found by the police in order to decrease the readings of electric current. The case was however dismissed on the ground that the offense had prescribed. Fourteen days later, the City Fiscal filed another case for theft against him. The court also dismissed this case on the ground of double jeopardy. The prosecution appealed contending the offense was different.

 

HELD:  The contention has no merit. The first sentence of Art. III, sec. 21 states the general rule: the constitutional protection against double jeopardy is not available where the second prosecution is for an offense that is different from the offense charged in the first or prior prosecution, although both may be based from the same facts. The second sentence provides an exception: that the protection against double jeopardy is available although the prior offense charged under an ordinance be different from the offense charged subsequently under the national statute such as the RPC provided that both offenses spring from the same act or set of acts.  VV.

 

 

People v. City Court of Manila, Branch VI, 154 SCRA 175 (1987)

 

F:         Agapito Gonzales, together with Roberto Pangilinan, was accused of violating Sec.7, in relation to Sec. 11 RA 3060 and Art. 201(3) of the RPC, in two separate informations filed with  the City Court of Manila.  Upon arraignment, accused Gonzales pleaded not guilty to both charges.  The other accused, Pangilinan, was not arraigned as he is still at large.  Gonzales filed a motion to quash the informations in the 2 cases on the ground that said informations did not charge an offense.  Motion denied.  Later, he again moved to quash the information in one of the Criminal case on the ground of duble jeopardy, as there was according to him, also pending aginst him another criminal case, where the informatin allegedly contain the same allegations as the information in the first criminal case.  Court granted the motion.

 

ISSUE:  W/N there is double jeopardy.

 

HELD:  NO

            It is a settled rule that to raise the defense of double jeopardy, 3 requisites must be present:  (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for teh same offense, or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or a frustration thereof.  All these requisites do not exist in this case,

            The 2 informations with which the accused was charged , do not make only one offense, contrary to private repondent's allegation.  In other words, the offense defined in  Sec. 7 of the RA 3060 punishing the exhibition  of motion pictures not duly passed by the Board of Censors for Motion Pictures does not include or is not included inthe offense  defined in Art 201 (3) of the RPC punishing the exhibition of indecent and immoral motin pictures. 

            The elements of the 2 offenses are different.   The gravamen  of the offense defined in RA 3060 is the public exhibition of any motion pictures which has not been previously passed by the Board of Censors for Motion Pictures.  The motion picture may be indecent or immoral but if it has not been previously approved by the Board, its public showing constitutes a crimnal offense.  On the other hand, the offense punished in Art 201(3) of the RPC is the public showing os indecent or immoral plays, scenes, acts, or shows, not just motion pictures. 

            The nature of both offenses also differs.  The crime punished in RA 3060 is malum prohibitum in wh criminal intent need not ber proved because it is presumed, while the offense punished in Art. 201(3) of the RPC is malum in se, which criminal intent is an indispensable ingredient.  Suzette.

 

 

                        2.  Rules of Court provisions

 

            Rule 117, Sec. 7.  Former conviction of acquittal; double jeopardy.--  When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of compentent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense in the former complaint of information.

            However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances:

            (a)  the graver offense developed due to supervening facts arising from the same act or omission consituting the former charge;

            (b)  the facts constituting the graver charge became known or were discovered only after the filing of the former complaint or information; or

            (c)  the plea of guilty to the lesser offense was made without the consent of the fiscal and of the offended party.

            In any of the foregoing cases, where the accused satisfied or serves in whole or in part the judgement, he shall be credited with the same in the event of conviction for the graver offense.

 

 

Melo v. People, 85 P 776 (1950)

 

F:         Conrado Melo was charged in the CFI, Rizal  with frustrated homicide , for having allegedly inflicted upon Obillo, with a kitchen knife and with intent to kill, several serious wounds on different parts of the body, requiring medical attendance for a period of more than 30 days, and incapacitating him from performing his habitual labor for the same period of time.  On Dec. 29, 1949, at 8 am, accused pleaded not guilty to the offense chargde.  At 10:15 am of the same day, Obillo died from his wounds.  An amended information was filed charging accused with consummated homicide.  Accused filed  a motion to quash the amended information alleging double jeopardy.  Motion denied.

 

ISSUE: W/N there is double jeopardy. 

 

HELD:  NO

            Double jeopardy means that when  a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the consent of the accused, the latter cannot again be charged with the same or identical offense.  The phrase "the same offense" has always been construed to mean not only that the second offense charged is exactly the same as the one alleged in the first information, but also that the two offenses are identical.  There is identity between the two offenses when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other. 

            This rule of identity however does not apply, however, when the second offense was not in existence at the time of the first prosecution, for the simple reason that  in such case there is no possibility for the accused, during the first prosecution, to be convicted for an offense that was then inesistent.  Thus, where the accused was charged with physical injuries and after conviction the accused dies, the  charge for homicide against the same accused does not put him twice in jeopardy.

            Accordingly, an offense may be said to necessarily include or to be necessarily included in another offense, for the purpose of detremining the existence of double jeopardy, when both offenses were in existence during the pendency of the first prosecution, for otherwise, if the second offense was then inexistent, no jeopardy could attach therefor during the first prosecution, and consequently a subsequent charge for the same cannot constitute a second jeopardy.  Suzette.

 

 

People v. City Court of Manila, Branch XI, 121 SCRA 637 (1983)

 

F:         This is a petition to review the order of the City Court of Manila Branch XI, dismissing the information for homicide thru reckless imprudence filed against Gapay, in a criminal case on the ground of double jeopardy.  Respondent court  held that the accused having been previously tried and convicted of serious physical injuries  thru reckless imprudence for the resulting death of the victim would place the accused in double jeopardy.

 

ISSUE:  W/N a person who has been prosecuted for serious physical injuries thru reckless imprudence and convicted thereof may be prosecuted subsequently for homicide thru reckless imprudence if the offended party dies as a result of the same injuries. 

 

HELD:  YES

            Well settled is the rule that one who has been charged with an offense cannot be charged again with the same or identical offense though the latter be lesser or greater than the former.  However as held in the  MELO case, the rule of identity does not apply when the second offense was not in existence at the time of teh first prosecution , for the reason that in such case there is no possibility for the accused during the first prosecution, to be convicted for an offense that was inexistent.

            The victim Diolito de la Cruz died on the day the information was filed , and the accused was arraigned 2 days after or on October 20, 1972 .  When the information for homicide thru reckless imprudence was, therefore, filed on October 24, 1972, the accused was already in doubly jeopardy.  Suzette.

 

 

People v. Yorac, 42 SCRA 230 (1971)

 

F:         Accused Yorac was charged with slight physical injuries before the City Court of Bacolod, the offended party being Lam

Hock who, according to the medical cerificate issued by Dr. Rogelio Zulueta, was confined since April 8 1968 up to the present time for head  injury in Occidental Negros Provincial Hspital.  Accused pleaded guilty on April 16, 1968  resulting in his being penalized  to suffer 10 days for arresto menor.  On April 18, 1968, the provincial fiscal filed an information charging the same defendant with  frustrated murder arising from the same act  against the aforesaid victim Lam Hock for upon further diagnosis, the healing period for the injuries caused to accused was found to be longer.   A motion to quash was filed by the accused  on the ground of double jeopardy. 

 

ISSUE:  W/N the defendant, who had already been convicted of slight physical injuries for injuries inflicted on Lam Hock , and had served sentence therefor, may be prosecuted anew for frustrated murder for the same act committed against the same person  

 

HELD:  NO.

            In order not to violate the constitutional prohibition on double jeopardy, there is the indispensable requirement of the existence of a new fact which supervenes for which the defendant is responsible changing the character of the crime imputed to him and together with the facts existing previously constituting a new and distinct offense.

            In this case, there is no supervening fact which occurred to justify the non-existence of double jeopardy.  The wound causing the delay in the healing of the injuries caused to the victim  was already in existence at the time of the first examination of the doctor.  Said delay was caused by the very superficial and inconclusive examination then made resulting to a later finding of fracture.    Suzette.

 

Barlongay:  When defense of double jeopardy available.--  (1)  Dismissal based on isufficiency of evidence;  (2)  dismissal bec. of denial of accused's right  to speedy trial; (3)  accused is discharged to be a state witness.

 

When defense of double jeopardy not available.--  When the case is dismissed other than on the merits upon motion of the accused personally, or through counsel, such dismissal is regarded as w/ express consent of the accused, who is therefore deemed to have waived the right to plea double jeopardy.

 

 

BARLONGAY CASES:

 

Yap v. Lutero, April 30, 1959

 

F:         Yap was charged with reckless driving in violation of a city ordinance. Later he was charged again in another criminal case in the same court with serious physical injuries through reckless imprudence. Yap moved to quash the latter information. Meanwhile, petitioner was acquitted in the first case.

 

ISSUE: W/N there was double jeopardy.

 

RULING: YES. From the viewpoint of Criminal Law, as distinguished from Constitutional or Political Law - the offenses with which petitioner was charged constitute, strictly different offenses, although, under certain conditions, one offense may include the other, and accordingly, once placed in jeopardy for one, the plea of double jeopardy may be in order as regards the other.

            Thus, if the injuries mentioned in the second information were not established by the evidence, petitioner could be convicted in the first case of the very same violation of municipal ordinance charged in the first case, unless he pleaded double jeopardy.  Charo.

 

 

Galman v. Sandiganbayan, 144 SCRA 43

 

F:         The petitioners filed an action to nullify the proceedings on the trial of the Aquino-Galman duble murder case alleging that respondents Tanodbayan and Sandiganbayan committed serious irregularities constituting mistrial and resulting in miscarriage of justice and gross violation of the constitutional rights of the petitioners and the sovereign people of the Philippines to due process of law. The SC dismissed. Meanwhile, the Sandiganbayan rendered its decision acquitting all the accused of the crime charged. Respondents submitted that in view of the SB decision, the case has become moot and academic.  Petitioners filed a motion for reconsideration of the SC ruling. The SC created the Vasquez Commisssion to look into petitioners' allegations.

 

RULING: The report of the Commission revealed that Pres. Marcos used the overwhelming resources of the Government and his authoritarian powers to corrupt and make a mockery of the judicial process in this case. The unwholly scenario for the acquittal of the accused after the rigged trial would accomplish the two principal objectives of satisfying the public clamor for the suspected killers to be charged in court and of giviing them, through their acquittal, the legal shield of double jepardy.

            However, double jeopardy does not attach where a criminal trial was a sham. A dictated, coerced and scripted verdict of acquittal such as in this case is a void judgment. In legal contemplation, it is no judgment. It neither binds nor bars anyone. The criminal collusion as to the handling and treatment of the cases by public respondents completely disqualified them and voided ab initio the SB verdict. DJ cannot be invoked where the prosecution, which represents the sovereign people in crimnal cases is denied due process.  Charo.

 

 

People v. Obsania, 23 SCRA 249

 

F:         The  information filed by the fiscal alleged that through violence and intimidation, Obsania had carnal knowledge of one  Erlinda Dollente against the latter's will. Later, the fiscal amended the complaint to allege therein that the offense was committed with lewd designs. The accused after pleading not guilty moved for the dismissal of the case on the ground that the first information was fatally defective for failing to allege "lewd desiigns," and that the amended information did not cure the jurisdictional infirmity. The motion of the defense was sustained by the judge. Hence this appeal by the fiscal.

 

RULING: The failure of the prosecution to allege "lewd designs" in the first information does not affect the sufficiency in substance of the information,  for unchaste motives are deemed inherent in the very act of rape itself. In any case, the lower court erred in dismissing the case by failing to distinguish between the concept of jurisdiction and insufficiency in substance of an indictment.

            As to the question of double jeopardy, the following requisites must have been obtained to invoke the constitutional protection against it:

            (1) a valid complaint or information;

            (2) a court of competent jurisdiction;

            (3) the defendant had pleaded to the charge; and

            (4) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent.

 

            The only remaining and decisive issue in this case seems to be as to whether or not the case was dismissed without the prior consent of the accused.

            The SC ruled that as a general rule, when the case is dismissed, other than on the merits, upon motion of the accused, such dismissal is to be ragarded as with the express consent of the accused and consequently he is deemed to have waived his right to plead double jeopardy and/or he is estopped from claiming such defense on appeal by the Government or in another indictment for the same offense.

            The exception to this is where the dismissal is sought by the accused on the ground that they were denied their right to a speedy trial and that the government failed to prosecute; in which case double jeopardy will set in. The case of herein accused falls under the general rule.  Charo.

 

 

People v. Turda, 233 SCRA 702

 

F:         The accused was charged with and convicted of illegal recruitment (under the Labor Code) and estafa (under the RPC) committed by him and two others.  Among others, he contended that the penalty of life imprisonment should not be imposed upon him because this was imposed by a new law not in force when the offense was allegedly committed. 

 

ISSUE:  Whether or not accused should be punished by life imprisonment.

 

RULING:  YES.  When the accused committed the acts of illegal recruitment from August 1986 to September 1987, the amendments to the law, which took effect on July 28, 1986, were already in force and effect.

 

ISSUE:  Whether or not there was double jeopardy.

 

RULING :  NO.  Where two different laws define two crimes, the conviction of one of them is no obstacle to that of the other, although both offenses arise from the same facts, if each crime involves some important act which is not an essential element of the other.  There is double jeopardy when the two offenses are in substance precisely the same or of the same nature or of the same species, so that the evidence which proves the one would prove the other; or if this is not the case, when the one crime is an ingredient of the other.  Applying this to the case at bar, not all acts which constitute estafa necessarily establish illegal recruitment, for estafa is wider in scope and covers deceits whehter or not related to recruitment activities.  More importantly, the element of damage, which is essential in estafa cases, is immaterial in illegal recruitment, and, while estafa is malum in se, illegal recruitment is malum prohibitumBam.

 

 

Gonzales v. CA, 232 SCRA 667

 

F:         A criminal complaint of qualified seduction was filed against petitioner Apolinario Gonzales with MTC, Obando Bulacan.  He pleaded not guilty. When the defense was about to rest its case, the prosecution filed a motion to instead commit the accused to a charge for rape since the evidence submitted indicated that rape, and not qualified seduction, was evidently committed.  Petitioner opposed the motion.  MTC dismissed the case on the ground that evidence presented did not prove the crime of qualified seduction and the crime of rape is beyond its jurisdiction. 

                Prosecution filed 6 separate informations for rape against petitioner which were later consolidated.  He gain pleaded not guilty.  On the 2nd scheduled hearing, private complainant and her counsel did not appear, hence the hearing was postponed  with no objection frrom petitioner.  On the next hearing, a postponenment was again sought by prosecution which was objected to by petitioner.  He moved for the dismissal of the case, claiming the delay would violate petitioner's right to a speedy trial.  A provisional dismissal with the express consent of the petitioner was granted.  A MFR was filed and MTC set aside order of dismissal.   THis petition with the SC invokes double jeopardy.

 

ISSUE:   W/N there is double jeopardy.

 

HELD:  NO

            For double jeopardy to arise,  the following requisites must be exist: (1) The previous complaint or information or other formal charge is sufficient in form  and substance to sustain a conviction; (2) The court has jurisdiction to try the case ; (3) the accused has been arraigned and has pleaded to the charge; (4) The accused is convicted or acquitted or the case is dismissed without his express consent.  When all the elements concur, a 2nd prosecution  for (a) the same offense, or (b) an attempt to commit the said offense or (c) any offense which necessarily includes, or is necessarily included in the first offense charged, can be rightly barred.

            Here there is no question that the MTC did not have the requisite jurisdiction to try the offense of rape which lies with the province of the RTC.  MOreover,m the dismissal of the case for qualified seduction by the MTC no only was provisional but likewise with the EXPRESS CONSENT of the petitioner.

            There is no transgression of the accused's right to speedy trial with only 2 postponements in the same month entailing an interval of just 7 days, the proceedings have not been unreasonably delayed in violation of the right to speedy trial.  Suzette.

 

 

            D.  The privilege of the writ of habeas corpus

 

            Art.  III, Sec. 15.  The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it. 

 

 

            In case of invasion or rebellion, when the public safety requires it, the President may, for a period not exceeding 60 days, suspend the privilege of the writ of habeas corpus...

 

            The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

 

            During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within 3 days, otherwise he shall be released.  (Art. VII, Sec. 18.)

 

            A "writ of heabeas corpus" is a writ directed to the person detaining another, commanding him to produce the body of the detainee at a designated time and place, and to show cause why he should continue to be detained.

 

            The "privilege of the writ" is the right to have the immediate determination of the legality of the deprivation of physical liberty.

 

            What is suspended is the privilege of the writ, and not the writ itself.  The writ will always issue as a matter of course.  But when the privilege of the writ is suspended, all the detaining office needs to do when he receives the writ of habeas corpus is to show to the court that the detainee is being detained for an offense covered by the suspension, and the court cannot inquire any further to find out if the detention is legal.  Under the Conmstitution, this is so only for 3 days.  After 3 days, the Court can now require the detaining officer to produce the body of the detainees and show cause why he should not be released.

 

            The suspension of the privilege of the writ applied only to crimes related to invasion or rebellion.  An extensive discussion was made under the Commander-in- Chief clause of the President, supra.  This rest of the section will be confined to habeas corpus as a remedy in all other offenses.

 

            In general as already noted above, the privilege of the writ is an extraordinary remedy to question the illegality of the arrest or detention, or any other restraint to liberty.  When all else is lost, it is the last recourse to get someone out of his illegal detention.

 

                        1.  Functions of the writ

 

Villavicencio v. Lukban, 39 P 778 (1919)

 

 

            Habeas corpus is available not only for those who are in actual detention but even for those whose liberty is merely restrained.  Thus, in Moncupa v. Enrile, 141 SCRA 233 (1986), the SC granted habeas corpus to petitioner who, though temporarily released, could not travel outside Metro Manila, could not change his residence, could not be interviewed by media, and had to report to the military.

 

 

Moncupa v. Ponce Enrile  141 SCRA 233 (1986)

 

F:         Petitioner and others were arrested and two separate informations were filed against him: one, for illegal possession of firearms before the CFI Rizal and another for illegal possession of subversive materials before the City Court of Quezon City. His companions were charged with subversion but he was excluded from the charge. Yet, his motions for bail were denied. He then filed a petition for habeas corpus but the respondents moved to dismiss on the ground that he had been temporarily released from detention. The issue was whether the petition had become moot and academic in view of petitioner's temporary release.

 

HELD: Attached to petitioner's temporary release are several restrictions. Such restrictions limit the freedom of movement of petitioner. It is not physical restraint alone which can be inquired into by means of the writ of habeas corpusVV.

 

 

                        2.  The writ of habeas corpus as a post-conviction remedy

 

 

            In Chavez v. Court of Appeals, supra, habeas corpus was the remedy of one whose confinement was the result of a void judgnment of conviction arrived at after the judge violated due process by compelling him to take the stand and testify against himself.

 

Chavez v. Court of Appeals, 24 SCRA 633 (1986), supra.

 

 

            In Gumabon v. Director of Prison, 37 SCRA 420 (1971), some persons who were charged with the complex crime of rebellion with homicide, rape, or other common crimes, did not appeal their conviction and so were sentenced accordingly.  The other accused, however, appealed their conviction, resulting in a new ruling in People v. Hernandez to the effect that there can be no complex crim of rebellion with homicide, rape, etc., for these common crimes are absorbed by rebellion.  As a result, while those who appealed were now free, those  who did not remained in jail.  The SC ruled that those who conrtinued to languish in jail could avail of habeas corpus to question the legality of their continued detention pursuant to the ruling in People v. Hernandez.

 

 

Gumabon v. Director of Prison, 37 SCRA 420 (1971)

 

 

Cruz v. Ponce-Enrile, 160 SCRA 702 (1988)[SITI1] 

 

 

 

                        3.  Suspension of the privilege

 

 

            Art. VII, Sec. 18.  The President shall be the Commander-in-Chief of all armed forces of the Philippines, and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.  In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.  Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress.  The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President.  Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

            The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call.

            The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.

            A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

            The suspension of the privilege shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

            During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. 

 

 

Lansang v. Garcia, 42 SCRA 488 (1971)   

 

 

 

            E.  Affirmative rights

 

                        1.  Free access to the courts

 

            Art. III, Sec. 11.  Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by reason of poverty.

           

 

                        2.  Protection and enforcement of constitutional rights

 

            Art. III, Sec. 12.  xxx

            (4)  The law shall provide for penal and civil sanctionsfor violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.

 

 

            Art. VIII, Sec. 5.  The Supreme Court shall have the following powers:

            xxx

            (5)  Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged.  Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights.  Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

  

 

            Art. XIII, Sec. 18.  The Commission on Human Rights shall have the following powers and functions:

            xxx

            (3)  Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the underprivileged whose human rights have been violated or need protection;

            xxx

 

 

                        3.  Compensation to, and rehabilitation of, victims of tortures

 

            Art. III, Sec. 12.  xxx

            (4)  The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.

 

 

IV.  FREEDOM OF EXPRESSION

 

 

            Art. III, Sec. 4.  No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievance. 

 

            Id., Sec. 18.  (1)  No person shall be detained solely by reason of  his political beliefs and aspirations.

            xxx

 

            A.  Philosophical Basis of Guarantees

 

Free Market Place of Ideas

 

                        1.  For the discovery of political truth

 

            When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and the truth is the only ground upon which their wishes safely can be carried out.   (Justice Holmes,  Abrams v. United States, 250 U.S. 616.  (1919)

 

            The theory behind freedom of expression is the principle that ours is a democratic society, and so the only way to rule ultimately is by, means of public opinion, which is possible only when everyone can speak their minds out and compete in the free market place of ideas.

 

                       

                        2.  For self government

 

United States v. Bustos, 37 P 731 (1918)

 

 

Burgos v. Chief of Staff, 133 SCRA 800 (1984), supra

 

HELD:  As a consequence of the search and seizure, the premises of the "Metropolitan Mail" and "We Forum" were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law and constitutes a virtual denial of petitioner's freedom to express themselves in print. This state of being is patenly anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry.  VV.

 

 

Corro v. Lising, 137 SCRA 341 (1985), supra

 

This case quoted the same ratio in Burgos v. Chief of Staff.

 

 

New York Times v. Sullivan, 380 US 51 (1964)

 

 

                        3.  For individual protection

 

Whitney v. California, 274 US 357, 47 S. Ct. 641, 71 L. Ed. 1045 (Brandeis, J., concurring)

 

 

            B.  Prior Restraints

 

            Thus any system of prior restraints of  expression comes to the Court bearing a heavy presumption against its constitutionality, giving the government a heavy burden to show justification for the imposition of such restraint.  (New York v. United States (1971); also in New York Times v. Pentagon and Bantam Books v. Publication of Pentagon Papers).

 

 

Sanidad v. COMELEC, 181 SCRA 529 (1990)

 

 

 

Subsequent Punishment

 

            And even subsequent punishment is tempered by the greater interest of promoting free public opinion.  The most significant expression is the law on libel.

 

            We consider this case against the background of a profound national commitment to debate on public issues being uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.  The falsity of some of the factual statements and alleged defamations do not qualify the role.  And just as factual error afforded no warrant for repressing speech that would otherwise be free, the same is true of injury to official reputation.  (New York Times v. Sullivan, 380 U.S. 51 (1964)

 

            The interest of society and good government demands a full discussion of public affairs.  Whether the law is wisely or badly enforced is a fit subject for proper comment.  Public policy, welfare of society, and the orderly administration of government have demanded protection for public opinion.  The inevitable and incontestable result has been the development and adoption of the doctrine of privilege.  [Justice Malcom, United States v. Bustos, 731 (1918).]

 

            While, uncer the Revised Penal Code, any defamatory statement is presumed to be malicious (malice-in-law), when the defense proves that the communication is privileged, such a presumption of malice does not arise because of the greater public interest involved.

 

            If the communication is absolutely privileged (as in parliamentary freedom of speech), the prosecution cannot even prove malice-in-fact.

 

            If the communication is only qualifiedly privileged (Art. 354 enumerates the 2 instances:  fair and true reporting of an official proceeding; legal moral or social duty), the burden is shifted on the prosecution to prove malice-in-fact, which the defense can overcome by proving the truth of the defamatory statement (which in the case of public officials may or may not constitute a crime, so long as related to the conduct of his office) and good motive.

 

 

            C.  Content-Based Restrictions

 

            1.  Test of validity of content-based restrictions

 

            The U.S. Supreme Court and, by haphazard imitation, the Philippine Supreme Court, have evolved certain tests to regulate the contents of speech.

 

            Dangerous Tendency Test:  When the legislative body has determined generally, in the exercise of its discretion, that utterances of a certain kind involve such danger of a substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and itself, to bring the substantive evils, is not open to consideration.  In such cases, the general provision of the statute may be constitutionally applied to the specific utterance if its natural and probable effect was to bring about the substantive evil which the legislative body might prohibit.  [Gitlow v. New York, 268 US 652 (1925).]

 

            Example:  Art. 142.  Inciting to sedition.  When the legislature has decided that one who advocates a certain conduct is guilty of a crime, the court cannot intrude.  As it evolved, this test was supposed to apply when there is a statute, in contrast to the clear and present danger rule which applies when the speech is not prohibited by statute.

 

            Clear and Present Danger Test:  The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.  It is a question of proximity and degree.  [Schenck v. United States, 249 US 47 (1919).]

 

            The emphasis of the test is the nature of the circumstances under which it is uttered.  The speech itself may not be dangerous.  As Holmes said:  "Many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight."  Or saying "Fire" in a crowded movie house.

 

            Grave-but-improbable danger:  Whether the gravity of the evil, discounted by its improbability, justifies such an invasion of free speech as is necessary to avoid the danger. [Dennis v. United States, 341 US 494 (1951), quoting Judge Learned Hand.]

 

            This test was meant to supplant the clear and present danger.  They both emphasize the circumstances of the speech, but this latter test consider the weighing of values.

 

            Direct Incitement Test:  The consitutional guarantees of free speech and press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy or peech is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action.  [Brandenburg v. Ohio, 395 U.S. 444 (1969), cited in Salonga v. Cruz Pano, 134 SCRA 438 (1985).]

 

            The test emphasizes the very words uttered:  (a)  What words did he utter?  (b)  What is the likely result of such utterance?  It criticizes the clear and present danger test for being top dependent on the circumstances.  Speaker may, when tested show no incitement but you know the speaker is inciting to sedition.

 

            Balancing of Interest Test:  The court must undertake the delicate and difficult task of weighing the circumstances and appraising the substantiality of the reasons advanced in support of the regulation of the free enjoyment of rights.  [American Communication Ass'n v. Douds, 339 US 383 cited in Gonzales v. COMELEC, 27 SCRA 835 (1969A)]

 

            The test applied when two legitimate values not involving national secuirty crimes compete.  Involves an appoint of the competing interest.  (Gonzales v. Comelec)

 

            In Aver v. Capulong and Enrile, for instance, it is a question of balancing the freedom of expression of the producer and the right to privacy of Enrile.

 

(not in VV's revised outline)

            Balancing of Factors Test:  The truth is theat the clear-and-present danger test is over- simplified judgement unless it takes into account also a number of other factors:  (1)  the relative seriousness of the danger in comparison with the value of the occasion for speech or political activity, (2)  the availability of more moderate controls than those the State has imposed, and perhaps (3) the specific intent with which the speech is launched.  (Freund, quoted in Dennis v. United States in the concurring opinion of Justice Frankfurter).

 

 

                        2.  Applications of tests in various contexts

 

                                    a.  Freedom of expression and national security

 

Espeulas v. People, 90 P 524 (1951)

 

 

 

Babst v. National Intelligence Board  132 SCRA 316 (1984)

 

F:         Petitioners are journalists and columnists. On different dates in July 1980, they were summoned by military authorities for interrogation regarding their work, feelings, sentiments, beliefs, associations and even private lives. In addition, one of them was charged with libel by a General who sought to recover P10 million in damages. They brought an action for prohibition to stop the NIB from questioning them and from filing libel suits on matters that had been the subject of inquiry by the NIB.

 

HELD:  The petition has become moot and academic. Be that as it may, it is not idle to note that, while ordinarily, an invitation to attend a hearing and answer some questions is not illegal or constitutionally objectionable, under certain circumstances, however, such an invitation can easily assume a different appearance as when it comes from a powerful group composed predominantly of ranking military officers and the designate interrogation site is a military camp.

 

Teehankee, J., dissenting: The SC should rule squarely or at least lay down the authoritative and controlling doctrines on the vital issues of upholding the freedoms of speech and of the press.  VV.

 

 

                                    b.  Freedom of expression and criticism of official conduct:  The Test of "Actual Malice"

 

            Read Revised Penal Code, Articles 353-354 and 361-362

 

            Art. 353.  Definition of libel.--  A libel is a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishnonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.   (Revised Penal Code.)

 

            Art. 354.  Requirement of publicity.--  Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

            1.  A private communication made by any person to another in the performance of any legal, moral or social duty; and

            2.  A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.  (Ibid.)

 

           

            Art. 361.  Proof of the truth.--  In every criminal prosecution for libel, the truth may be given in evidence to the court and if appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and for justifiable ends, the defendants may be acquitted.

            Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the imputation shall have been made against Government employees with respect to facts related to the discharge of their official duties.

            In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

 

            Art. 362.  Libelous remarks.--  Libelous remarks or comments connected with the matter privileged under the provisions of article 354, if made with malice, shall not exempt the author thereof nor the editor or managing editor of a newspaper from criminal liability.

 

 

            Compare Act No. 2928, March 26, 1920 and Com. Act No. 382, Sept. 6, 1938

 

            Act No. 2928

 

 

            Com. Act 382, Sept. 5, 1938

 

COMMONWEALTH ACT NO. 382

 

AN ACT TO ADOPT THE ORIGINAL AUTHENTIC FORM OF THE PHILIPPINE NATIONAL ANTHEM AND TO APPROPRIATE FUNDS FOR ITS PRINTING AND FREE DISTRIBUTION.

 

                To preserve the musical adaptation and motive in the original authentic composition of the Philippine National Anthem as set by its author, Julian Felipe, and to attain uniform performance thereof in the Philippines:

 

Be it enacted by the National Assembly of the Philippines:

 

                Sec. 1.  The musical arrangement and composition of the Philippine National Anthem as set by its author, Julian Felipe, is adopted.

                Sec. 2.  There is appropriated, out of the unappropriated funds in the National Treasury, the sum of five hundred pesos for the preparation, printing and free distribution of copies of the Philippine National Anthem as adjusted to its original authentic outline. 

                Sec. 3.  The National Library of the Philippines is entrusted with the accomplishment hereof.

                Sec. 4.  This Act shall take effect on its approval.

                Approved, September 5, 1938.

 

 

Freedom of expression and libel

 

            Freedom of speech versus right to reputation.  Libel is the most common form of subsequent punishment.  Although one cannot be prevented from saying something before he actually says it, one can be held liable for what one has said if it causes damage to the rights of others.

 

 

Soliven v. Makasiar; Beltran v. Makasiar, 167 SCRA 393 (1988)

 

F:         The President of the Philippines filed a complaint for libel against the petitioners, who were the publisher and columnist of the Philippine Star, based on the following statement in Beltran's column of Oct. 12, 1987 totle "The Nervous Officials of the Aquino Administration": "If you recall, during the August 29 coup attempt, the President hid under her bed while the firing was going on - perhaps the first Commander-in-Chief to do so." Beltran did not submit a counter affidavit and instead, moved to dismiss the complaint. The fiscal denied his motion. Thus, this petition for certiorari.

 

HELD:  xxx

            (3)  As regards the contention of petitioner Beltran that he could not be held liable for libel bec. of the privileged character of the publication, the Court reiterates that it is not a trier of facts and that such a defense is best left to the trial court to appreciate after receiving the evidence of the parties.  As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on the press freedom, the Court finds no basis at this stage to rule on the point.  VV.

 

Manuel v. Cruz-Pano, 172 SCRA 225 (1989)

 

Libel suits based on official criticisms should be dismissed outright unless made in bad faith

 

F:         Petitioner wrote the Chairman of the Anti-Smuggling Action Center denouncing abuses allegedly committed by ASAC agents against petitioner's clients. Petitioner said the agents subjected Ng Woo Hay to indignities and took her necklace and bracelet and her son's wristwatch plus HK$ 70. But the agents were exonerated so petitioner filed criminal charges of robbery. Petitioner found prosecutors unsympathetic so he filed a civil action for damages against the agents. Later, the Bulletin Today published a news item based on petitioner's letter to ASAC. This became the basis of an action for libel brought against petitioner and his clients. Petitioner moved to quash the case but his motion was denied.

 

HELD:  From the viewpoint of procedural and substantive law, the charge is defective. The letter constitutes privileged communication. It was sent by petitioner in his capacity as lawyer in the discharge of his legal duty to his clients. He could also invke his civic duty as a private individual to expose anomalies in the public service. The complaint was addressed to the official who had authority over them and could impose proper disciplinary sanctions. As an index of good faith, the letter was sent privately, directly to the addressee without any funfare nor publicity. As for the news report, it is difficult to believe that the petitioner, an ordinary citizen without known ties to newspaper, could have by himself caused the publication. It does not appear either that the report was paid for like an advertisement. At any rate, the news item is a true and fair report of a judicial proceeding, made in good faith and without comments or remarks.  VV.

 

 

Newsweek Inc. v. IAC  142 SCRA 171 (1986)

 

F:         Petitioner was sued for libel in connection with the publication in the Feb. 23, 1981 issue of Newsweek of the article "An Island of Fear." The plaintiffs, sugar planters of Bacolod, complained that the article portrayed them as exploiters of sugar workers. Petitioner moved to dismiss the complaint on the ground that the article was not libelous since it did not single any particular individual. The trial court denied the motion and petitioner filed a petition for certiorari in the IAC which was dismissed. Thus, this appeal to the SC.

 

HELD:  Where the defamation is alleged to have been directed at a group or class, it is essential that the statement must be so sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action separately if need be. The disputed portion which refers to plaintiff Sola never singled out Sola. The news report merely stated that the victim had been arrested by members of a special police unit brought into the area by Sola, the mayor. Hence, the report referring as it does to an official act is within the realm of privileged and is protected by the constitutional guarantees of free speech and press.  VV.

 

            Notes:  Since the Newsweek artciles "Island of fear in the Visayas" did not specify any individual, it cannot be libelous.  An article must be sufficiently, specific or at least sweeping as to apply to all members of a group, in order to be deemed libelous.

 

Lopez v. Court of Appeals, 34 SCRA 116 (1970)

 

            The pictures of a former mayor was inadvertently published and mistaken for another man who was a sanitary inspector and fooled the authorities about the Babuyan Islands, claiming of murders there, so they could go and he could be rescued.   An erratum was published by the This Week magazine.  The SC, quoting Quisumbing v. Lopez, however, found for plaintiff, but with reduced damages, since the error in in this case could have been checked consideringing that this was a weekly magazine and not a daily.

 

Quisumbing v. Fernando, 96 Phil 510 (1955)

 

            Newspapers should be given leeway and tolerance to enable them to courageously and effectively perform their important role in our democracy.  In the preparation of stories, press reporters and editors usually have to race to their deadlines; and consistently with good faith and reasonable care, they should not be held to account, to a point of suppression, for honest mistakes or imperfection in the choice of words.

.

 

Mercado v. CFI of Rizal  116 SCRA 93 (1982)

 

F:         Petitioner was accused of libel on the basis of a telegram which he sent to the Secretary of Public Works requesting investigation of Mrs. Virginia Mercado of the Public Service Commission "as we have reason to believe that she has enriched herself thru corrupt practices xxx." He filed a motion to dismiss on the ground that his communication was privileged, but his motion was denied. He filed another motion which was also denied. Thus, this petition for certiorari, mandamus and prohibition in the SC.

 

HELD:  US v. Bustos is a landmark decision antedating by forty years a similar decision of the US Supreme Court to the effect that a libel prosecution must survive the test of whether or not the offending publication is within the guarantees of free speech and free press. However, Justice Malcolm in US v. Bustos was careful to point out that qualified privilege and this is one instance may be "lost by proof of malice." What casts doubt on the good faith of petitioner is his conduct, vis-à-vis private respondent. The tenacity with which petitioner had pursued a course of conduct on its face would seem to indicate that a doubt could reasonably be entertained as the bona fides of petitioner. The prosecution should be given a chance to prove malice.  VV.

 

 

 

(not in VV's revised outline)

Elizalde v. Gutierrez, 76 SCRA 448 (1977)

 

            A publication of a dispatch coming from the Philippine News Agency by the sensationalist newspaper Evening News about the Maggie dela Riva rape case involving prominent individuals is not libelous.  Courts must be careful not to unnecessarily prosecute members of the press if it finds the prosecution to be baseless, they should immediately dismiss the case and not allow the editor and publisher to be derailed from their work by being dragged into trial.

 

 

                                    c.  Freedom of expression and the right to privacy

 

Lagunzad v. Gonzales, 92 SCRA 476 (1979)

   

F:            Lagunzad filmed the Moises Padilla story based on a book written by Rodriguez.  xxx  Nelly Amane who was a half-sister of Padilla objected to the movie on the ground that it contained a portrayal of Padilla's private and family life, including scenes about his mother, Maria Soto vda. de Gonzales, and a certain "Auring" as Padilla's girl friend.  Subsequently, Nelly Amante, together w/ her sister and mother, agreed to allow petitioner to "exploit, use and develope the life story of Moises Padilla for purposes of producing the pictures," in consideration of P20,000.  Petitioner paid P5,000 but as he failed to pay the balance agreed upon, he was sued.  Judgement was rendered against him by the trial court, w/c was affirmed by the CA.  Petitioner appealed to the SC contending that he was forced to enter into the agreement only to avoid financial loss caused by delay in the showing of the movie and the relatives of Padilla did not have a property right in the life of M. Padilla since Padilla was a public figure.  

 

HELD:  Petitioner's averment is not well taken.  Being a public figure does not automatically destroy in toto a person's right to privacy.  The right to invade a person's privacy to disseminate public information does not extend to fictional or novelized representation of a person, no matter how a public figure he or she may be.  In the case at bar, while it is true that petitioner exerted efforts to present the true-to-life story of Moises Padilla, petitioner admits that he included a little romance in the film bec. w/o it, it would be a drab story of torture and brutality.

            Freedom of expression, indeed, occupies a preferred position in the hierarchy of civil liberties.  It is not,  however, w/o limitations.  In the particular circumstances presented and considering the obligations assumed by petitioner under the agreement, the validity of such agreement will have to be upheld particular bec. the limits of freedom of expression are reached when expression touches upon matters of private concern.  [In the agreement signed by him, petitioner admitted that in the picture produced, he had "exploited the life story of Moises Padilla for pecuniary gain, and other profit motives, and (had) encroached upon the privacy of Moises Padilla's immediate family, and (had) in fact included, in the PICTURE's case, persons portraying some of MOISES PADILLA's kin..."]  VV.

 

 

Ayer Productions Pty. Ltd. v. Capulong April 29, 1988

 

F:         Pivate respondent Juan Ponce Enrile filed an action in the RTC of Makati to enjoin the petitioners from producing the movie "The Four Day Revolution," a documentary of the EDSA Revolution in 1986 on the ground that it violated his right to privacy. Petitioners contended that the movie would not involve his private life not that of his family. But the trial court issued a writ of preliminary injunction and ordered petitioners to desist from making the movie making reference whatsoever to Ponce Enrile. This, this action for certiorari.

 

HELD:  Freedom of speech and expression includes freedom to produce motion pictures and to exhibit them. What is involved is a prior restraint by the Judge upon the exercise of speech and of expression by petitioners. Because of the preferred character of speech and of expression, a weighty presumption of invalidity vitiates measures of prior restraint. The Judge should have stayed his hand considering that the movie was yet uncompleted and therefore there was no "clear and present danger." The subject matter of the movie does not relate to the private life of Ponce Enrile. The intrusion is no more than necessary to keep the film a truthful historical account.  He is, after all, a public figure. The line of equilibrium in the specific context of the instant case between freedom of speech and of expression and the right of privacy may be marked out in terms of a requirement that the proposed motion picture must be fairly truthful and historical in its presentation of facts. There must be no showing of a reckless disregard of truth.  VV.

 

            Notes:  Ayer sought to produce a movie on the 4-day revolution.  Enrile, who had previously been asked for the use of his character in the movie and had refused the offer, sued to enjoin the filming because he did not want any mention of his and his family's name.  The SC lifted the injunction issued by the lower court on the ground that it amounted to prior restraint, which is no better if imposed by the courts than if imposed by administrative bodies or by ecclesiatical officials.

 

            In Ayer, the reference to Enrile is unavoidable because his name is part of history and this cannot be changed or altered; thus his name can be used so long as only his public life is dwelled only.  But in Lagunzad, although Moises Padilla was also a public figure, the movie dealth with both the public and private lives of Moises Padilla.

 

 

                                    d.  Freedom of expression and administration of justice (contempt of court)

 

In re Emiliano P. Jurado, AM NO. 90-5-2373, July 12, 1990

 

 

In re Ramon Tulfo, AM NO. 90-4-1545-0, April 17. 1990

 

 

Zaldivar v. Sandiganbayan, 170 SCRA 1 (1989)

 

 

Cabansag v. Fernandez, 102 Phil 152 (1957)

 

            A contempt imposed by the court on the party who sent a letter to the Presidential Action Committee complaining about the delay in the disposition of the agrarian case, was lifted by the SC.  It held that although such a letter should have been sent to the SC and not the PAC, it was nevertheless a valid exercise of speech which did not significantly destroy, the orderly administration of justice.

 

(not in VV's revised outline)

People v. Alarcon, 60 Phil 265 (1939)

 

            A person can be held liable for making comments on a pending case (sub judice) which have the tendency to impair or obstruct the orderly administration of justistice.  But if the case is not pending, such comment is a valid exercise of the freedom of expression.

 

 

                                    e.  Symbolic Expression--  The Flag-burning case

 

Texas v. Johnson, 491 US 397, 109 S. Ct. 2533 (1989)

 

Flag burning when done to express dissent is protected speech.

 

F:            Respondent Johnson participated in a political demonstra­tion where he burned an American flag while protesters chanted.  No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning.  Johnson was convicted of desecration of a venerated object in violation of a Texas statute which (1) prohibited the desecration of, among other things, a state or national flag, and (2) defined desecration as the physical mistreatment of such objects in a way which the actor knows will seriously offend one or more persons likely to observe or discover the act.  A state court of appeals affirmed.  The Court of Criminal Appeals of Texas reversed, holding that the desecration statute as applied violated the defendant's right to freedom of speech under the Federal Consti­tution's First Amendment, because the statute (1) was too broad for First Amendment purposes as it related to breaches of the peace, and (2) was not adequately supported by the state's pur­ported interest in preserving a symbol of unity.

 

ISSUE:  Whether the flag desecration statute is unconstitutional

 

HELD:  YES. Decision Affirmed.

            Johnson's conviction was inconsistent with the First Amendment under the particular circumstances because (1) Johnson's conduct was sufficiently imbued with elements of communication to implicate the First Amendment, given that this flag burning was the culmination of a political demonstration and that the state conceded  that the protester's conduct was expressive; (2) the state's interest in preventing breaches of the peace was not implicated on the record in this case, since (a) no disturbance of the peace actually occurred or threatened to occur because of the flag burning, (b) it cannot be presumed that an audience which takes serious offense at a particular expression is necessarily likely to disturb the peace, and (c) the flag burning does not fall within the small class of "fighting words" that are likely to provoke the average person to retaliation and thereby cause a breach of the peace; and (3) the state's asserted interest in preserving the flag as a symbol of nationhood and national unity does not justify the conviction, since (a) the attempted restriction on expression is content-based, and thus subject to the most exacting scrutiny, given that the flag desecration statute is aimed not at protecting the physical integrity of the flag in all circumstances, but only against impairments that would cause serious offenses to others and is aimed at protecting onlookers from being offended by the ideas expressed by the prohibited activity, and (b) although the state has a legitimate interest in encouraging proper treatment of the flag, it may not foster its own view of the flag by prohibiting expressive conduct relating to it and by criminally punishing a person for burning the flag as a means of political protest. 

 

Rehnquist, White, O'Connor, JJ., Dissenting Opinion:

 

            (1) The Texas statute is not invalid under the First Amendment as applied in this case, because (a) the American Flag has come to be the visible symbol embodying our nation and is not simply another idea or point of view competing for recognition in the marketplace of ideas, and the public burning of the American flag in this case was no essential part of any exposition of ideas and had a tendency to incite a breach of the peace; and (2) the statute is not unconstitutionally vague or overbroad.

 

Stevens, J., Dissenting Opinion:

 

            (1) Sanctioning the desecration of the flag will tarnish its value as a national symbol, a tarnish which is not justified by the trivial burden on free expression that is occasioned by requiring that alternative modes of expression be employed;  (2) the flag-desecration statute does not prescribe orthodox views or compel any conduct or expression of respect for any idea or symbol; and (3) the defendant  was prosecuted not for his criticism of governmemt policies, but for the method he chose to express those views, and a prohibition against that method is supported by a legitimate interest in  preserving the quality of an important national asset.  Adapted.

 

 

Cf. Act No. 2938, March 26, 1920

 

 

Com. Act 382, Sept. 5, 1938

 

COMMONWEALTH ACT NO. 382

 

AN ACT TO ADOPT THE ORIGINAL AUTHENTIC FORM OF THE PHILIPPINE NATIONAL ANTHEM AND TO APPROPRIATE FUNDS FOR ITS PRINTING AND FREE DISTRIBUTION.

 

                To preserve the musical adaptation and motive in the original authentic composition of the Philippine National Anthem as set by its author, Julian Felipe, and to attain uniform performance thereof in the Philippines:

 

Be it enacted by the National Assembly of the Philippines:

 

                Sec. 1.  The musical arrangement and composition of the Philippine National Anthem as set by its author, Julian Felipe, is adopted.

                Sec. 2.  There is appropriated, out of the unappropriated funds in the National Treasury, the sum of five hundred pesos for the preparation, printing and free distribution of copies of the Philippine National Anthem as adjusted to its original authentic outline. 

                Sec. 3.  The National Library of the Philippines is entrusted with the accomplishment hereof.

                Sec. 4.  This Act shall take effect on its approval.

                Approved, September 5, 1938.

 

 

Adm. Code of 1987, Bk I, Chapter 4, Sec. 12-13

 

 

                                    f.  Movies Censorship

 

            While prior restraint is the general rule, censorship in the movies is tolerated because by the nature of the medium, it has a greater impact on the audience and produces instant reaction for the ideas it presents, unlike newspapers which are read by people separated by walls.

 

 

Gonzales v. Katigbak, 137 SCRA 356 (1985)

 

F:         Petitioner was the producer of the movie Kapit sa Patalim which the Board of Review for Motion Pictures and Televisions allowed on condition that certain deletions were made and that it was shown on adults only. The petitioner brought an action, claiming violation of their freedom of expression.

 

HELD:  Motion pictures are important both as a method for the communication of ideas and the expression of the artistic impulse. The power of the Board is limited to the classification of films. For freedom of expression is the rule and restrictions the exception. The power to impose prior restraint is not to be presumed, rather the presumption is against its validity. Censorship is allowable only under the clearest proof of a clear and present danger of a substantive evil to public safety, public morals, public health or any other legitimate public interest. The Board committed an abuse of discretion in subjecting petitioner to difficulty and travail before the movie was classified as "For adults only" without deletion. However there is not enough votes to consider the abuse of discretion grave as it explained that there were reasons for its action because of the scenes showing women erotically dancing naked and kissing and caressing each other like lesbians.  VV.

 

 

            Notes:  The movie involved in this case was "Kapit sa Patalim" which the censors wanted to cut in some part and to label "For Adults".  The SC rules that movies are within the constitutional protection of freedom of expression, so that censorship is presumed to be valid as constituting prior restraint.  The only case whe the Board of Censors can order a deletion is when there is a clear and present danger of a substantive evil against national security or public morals or other public interest.  In all other cases, the Board can only classify.    

 

            But a different standard must be followed in television because of the pervasive and intrusive influence of the medium on people who watch its programs without having to pay anything.

 

            On the issue of obscenity, the SC held that sex along is not necessarily obscenity, the test being whether, using contemporary community standards, the dominant appeal us to the prurient interest. (Miller v. California).  Thus on this score, it found abuse of discretion of the part of the Board for subjecting the producer to difficulty and for entertaining a narrow view of obscenity, but it lacked the votes to rules that the abuse was grave.

 

Cruz, CONSTITUTIONAL LAW, 1991 ed.:

 

Tests of obscenity:

            (1)  Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.

            (2)  Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable law.

            (3)  Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.  (Miller v. California, 37 L. Ed. 2d 419.)

 

                                    g.  Radio Broadcast

 

            In Eastern Broadcasting Corp. v. Dans, 137 SCRA 647, the SC held that radio broadcast also enjoys the protection of the freedom of expression.  If closed down, the owners enjoy the rights to due process according to the standards set in Ang Tibay v. CIR.

 

            But radio deserves greater regulation than newspapers because it could invade the privacy of everyone for no fee, and it is such that one is likely to listen to what is being said.

 

 

Eastern Broadcasting Corp. (DYRE) V. Dans, 137 SCRA 647 (1985)

 

F:         The petitioners filed this action to compel respondent government officials to allow the reopening of Radio Station DYRE after it had been closed for allegedly having been used to incite the people to sedition. The petitioner contended that it was denied due process because no hearing was held and no proof was submitted to establish a factual basis for the closure. However, before the Court could promulgate its decision the petitioner filed a motion to withdraw its action on the ground that it had sold the radio station to Manuel Pastrana and that the National Telecommunications Commission had expressed its willingness to grant the requisite license.

 

HELD:  The case has been moot and academic. However, for the guidance of the inferior courts and administrative bodies, the following guidelines must be observed: 1) The cardinal primary requirements in administrative proceedings as laid down in Ang Tibay v. CIR should be followed before a broadcast station may be closed; 2) All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and print media. This limitation derives from the fact the broadcast media have a uniquely pervasive presence in the lives of all Filipinos; 3) The government has a right to be protected against broadcasts which incite listeners to violently overthrow it; and 4) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution.  VV.

 

 

                                    h.  Freedom of Information

 

            Art. III, Sec. 7.  The right of the people to information on matters of public concern shall be recognized.  Access to official records, and to documents and papers pertaining to, official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. 

 

 

 

Baldoza v. Dimaano, 71 SCRA 14 (1976)

 

            Access of official records (the docket book) for any lawful purpose (to look into the criminal cases for a report on the peace and order situation of the municipality) is guaranteed.  But it is subject to reasonable conditions by the custodian of the records.

 

 

Garcia v. BOI, 177 SCRA 374 (1989)

 

 

            D.  Content-Neutral Restrictions

 

            O'brien test: A government regulation is sufficiently justified if it is within the constitutional power of the government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged freedom of expression is no greater than is essential to the furtherance of that interest.  [US v. O'brien, 391 US 367 (1968), adopted in Adiong v. COMELEC, 207 SCRA 712 (1992)]   

 

 

                        1.  Regulation of political campaign

 

National Press Club v. COMELEC, 207 SCRA 1 (1992)

 

F:         Petitioners herein were representatives of mass media which were prevented from selling and donating space or air time for political advertisements under RA 6646.

 

ISSUE: Whether or not RA 6646 constitutes a violation of the constitutional right to freedom of expression.

 

RULING: NO. The Comelec has been expressly authorized by the Constitution to supervise or regulate the enjoyment or utilization of the franchises or permits for the operation f media of communication and information. The fundamental purposes of such power are to ensure "equal opportunity, time, and space, and the right to reply," as well as uniform and reasonable rates of charges for the use of such media facilities, in connection with "public information campaigns and forums among candidates."

            Of course, the law limits the right of free speech and of access to mass media of the candidates themselves. The limitation however, bears a clear and reasonable connection with the objective set out in the Constitution. For it is precisely in the unlimited purchase of print space and radio and television time that the resources of the financially affluent candidates are likely to make a crucial difference.  Charo.

 

 

Adiong v. COMELEC, 207 SCRA 712 (1992)

 

F:         Petitoner, Adiong, a  1992 senatorial candidate, assails Comelec Resolution No. 2347 insofar as it prohibits the posting of decals and stickers on mobile places, public or private, and limits their location or publication to authorized posting areas.

 

ISSUE: Whether or not the resolution is constitutional.

 

RULING: NO. The prohibition unduly infringes on the citizen's fundamental right of free speech. There is no public interest substantial enough to warrant the kind of restriction involved in this case. The posting of decals amd stickers in mobile places does not endanger any substantial government or public interest. Under the clear and present danger rule, not only must  the danger be patently clear and pressingly present but the evil sought to be avoided, must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled.

            Significantly, the freedom of expression curtailed by the prohibition is not so much that of the candidate  or the political party. The regulation strikes at the freedoom of an individual to express his preference  and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private  vehichle, the expression becomes a statement by the owner, primarily his own and not of anybody else.

            Morever, The restriction is so broad that it encompasses even the citizen's private property, which in this case is a privately owned vehicle. In consequence of this prohibition, another cardinal right guaranteed under the Constitution is violated which is that no person shall be deprived of his property without due proocess of law.  Charo.

 

 

 

                        2.  Freedom of Assembly

 

Public Assembly Act of 1985 (Batas Blg. 580)

 

            A permit to hold a rally must be filed with the Office of the Mayor at least, five working days before the day of the rally.

 

            But no permit from the mayor is required in case the rally is going to be held in (i) freedom parks, (ii) inside a private property (provide with consent of the owner), and (iii) campuses of state universities (which are left to university authorities)

 

            The application must be in writing and must include: (1) names of the organizers and leaders, (2) date and time, place and street, (3) size (4)manner of the use of the street, (5) sound system to be used (6)purpose.  It must also have a statement of the duties of the rallyists.

 

            The written application is filed with the Office of the Mayor.  Acknowledgemet is given of its receipt.  If the Mayor refuses to accept the application, then it is enough for filing purposes if a copy is posted in the premises.

 

            The Mayor has 2 working days to act on the application.  If he does not act, it is deemed granted.

 

            But if he thinks that the rally creates a "clear and present danger" to public peace, order, health, etc., and he has proof of this, he should not deny the application right away.  He should hold a hearing during which the applicant can be heard.  If after hearing he is still not satisfied that no danger exists, then he can deny the application.

 

            The applicant can then go to any court other than the Supreme Court for the review of the decision of denial of the mayor.  The courts have 24 hours to act on the petition.  If the judgment is a reversal of the denial, or in any case if the applicant is satisfied with the decision, the  judgment becomes final and executory immediately, and no appeal can be taken by the local authorities anymore.

 

            But if the decision is not satisfactory  to the applicant, then he has 48 hours from receipt to appeal to the SC.

 

            During the rally, the police must be limited to maintaining peace and order and so must stay away by 100 meters from the rallyists.  They must be in full uniform, with their names visibly written.  They can carry no firearm except a nighstick, but they are allowed protective devices.

 

            If they anticipate trouble, the police must call the attention of the leader of the rallyists.  When trouble actually erupts, the police must not disperse the crowd right away but first give a warning.  If violence persists, they must give a second warning.  If still violence continues, only then can they fight back.

 

            If a rally does not have a permit, the police can disperse the crowd, but they cannot use violence.  Penalty is imposed only on the leaders and organizers.

 

            Among the duties of the rallyists are: (a) to inform the members of their duty under the law, (b) to police their own rank, and (c) to cooperate with local authorities in maintaining peace and order.

 

 

            Notes:  The freedom to use public places to peaceably assemble is best expressed thus:  "Wherever the title or steets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of time have been used for purposes of assembly, communicating thought betwee citizens, and discussing public questions." (Justice Roberts.  Hague v. CIO)

 

            Although under a "permit system", before one can use a public place, one must first obtain prior permit from the proper authorities, the principle has always been that one has the right to a permit, subject only to reasonable regulation.  The validity of the permit system has been upheld by the Court, provided, (a) it is concered only with the time, place and manner of assembly ad (b) it does not vest on the licensing authority unfettered discretion in choosing the groups which could use the public place and discriminate others.

 

            As held by the SC in Primicias vs Fugoso, 80 Phil. 71, the City Ordinance of Manila giving authority to the Mayor to issue permits for parades should be construed to be limited to the time, place, and manner of the parades socially to secure public order, convenience and welfare.  Thus, denying the Nacionalista Party a permit to hold a rally at the Plaza Miranda on the ground that passions raised by the recent national election were still high and a rally to protest election anomalies could only exacerbate the matter, was overturned by the court.

 

 

Primicias vs Fugoso, 80 Phil. 71

 

F:         This is an action for mandamus instituted by petitioner Primicias, campaign manager of the Coalesced Minority Parties, to compel Mayor Fugoso of the City of Manila to issue a permit for the holding of a peaceful public meeting at Plaza Miranda for the purpose of petitioning the government for redress of grievances. The Mayor denied the application on the ground that passions still run high due to the recent election, and a rally to protest election anomalies might threaten breaches of the peace and disruption of public order.

 

ISSUE: W/n the Mayor can refuse to grant the permit.

 

RULING: NO. The police power granted to the Mayor under the Ordinance enacted by the Municipal Board pursuant to its authority under the Revised Administrative Code  which pertains to the use of streets and public places, can be construed only to mean the power  to regulate, which means and includes the power to control, govern, and to restrain but cannot be construed as synonymous with "suppress" or "prohibit."

            The Court quoted with approval  the decision in the American case Cox v. State of New Hampshire, " a statute requiring persons using public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgement of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license..."  Charo.

 

 

            But under the same ordinance, the SC, in Navarro v. Villegas, 31 SCRA 730 (1970), upheld the mayor's refusal to grant permit to a group during weekdays, on a finding that everytime there was an announced rally, stores closed and business was gravely affected because of violent incidents.  It found the policy of the mayor to allow rallies only during weekends to be reasonable.

 

 

Navarro v. Villegas, 31 SCRA 730 (1970)

 

F:         The petitioner, acting in behalf of the Movement for a Democratic Philippines (MDP), an association of students, workers and peasants, applied for a permit from the Mayor of Manila to hold a rally at Plaza Miranda. Respondent Mayor denied the application  to hold the rally on the date and time specified  by petitioners in view of the events that transpired during the last demonstration held by them which  ended in the destruction of public and private property, loss of a few lives, injuries to a score of other persons and the closing down of  schools, offices and many stores. The Mayor suggested that the MDP utilize the Sunken Gardens near Intramuros for its rally and that the rally be held during weekends and  earlier during the day so that it may end before dark.

                Petitioner challenged the action of the Mayor on the ground that the same constitutes a violation of their right to freedom of assembly. Petitioner contended that the right of the people to peaceful assembly and to petition the government for redress of grievances may be exercised without the prior necessity of securing a permit from the government and that such right cannot be fully enjoyed without the corresponding right to use public places for that purpose. 

 

ISSUE:  Whether or not the Mayor`s denial to issue a permit amounted to a violation of petitioner`s right to freedom of assembly.

 

HELD: NO.

            The respondent Mayor has not denied nor absolutely refused the permit sought by petitioner. He has expressed willingness to grant the permit for the peaceful assembly during certain days and time, and at a place when they would not disrupt the normal activities of the community.

           The respondent mayor possesses reasonable discretion to determine or specify the streets or public places to be used for the assembly in order to secure convenient use thereof by others and provide adequate and proper policing to minimize the risks of disorder and maintain public safety and order.

            Petitioner has failed to show a clear specific legal duty on the part of respondent Mayor to grant their application for a permit unconditionally.  Experience in connection with present assemblies and demonstrations have shown that they pose a clear and imminent danger of public disorders, breaches of the peace, criminal acts, and even bloodshed as an aftermath of such assemblies, which,  petitioner has manifested, it has no means of preventing.  Charo.

 

 

            In Ignacio v. Ela, 99 Phil. 346 (1956), the majority upheld the mayor's denial of permit to members of the Jehovah's Witnesses sect for the use of a klosk within the town plaza in order to avoid any untoward incident with members of the Roman Catholic Church, whose tenets are opposed to those of the petitioners, and whose church is very near the klosk.

 

 

 

Ignacio v. Ela, 99 Phil. 346 (1956)

 

F:         The Mayor denied a permit to the members of the Jehovah's Witnesses to use the kiosk in the town plaza for the purpose of holding a public lecture on the ground that the permit,  if granted, may give rise to disturbance of the religious ceremonies being performed by the Catholic Church which was said to be within hearing distance from the kiosk and which might lead to any  untoward incident with members of the rival denomination.

 

ISSUE: W/N the denial is valid.

 

Dissenting: Concepcion, J.

 

            The ground invoked by the Mayor for denying the permit was that the members of the Jehovah's Witnesses may say or do something tending to disturb public order. To warrant denial of the permit prayed for  would, in effect, nullify the Bill of Rights, for all rights are susceptible of abuse and, hence, the possibility of such abuse is always present in the exercise of any right. In this connection, it is important to note that petitioner's aforementioned request is covered by the Constitutional mandates on due process, freedom of speech, freedom of assembly and freedom of religion. Obviously, a right of such magnitude as to be guaranteed by no less than four provisions of the fundamental law - and these of the most transcendental and vital to the democratic system underlying the structure of our Republic - cannot be curtailed on the basis of an abstract and speculative possibility of a threat to peace or breach of peace, which may or may not result, if and when, in the exercise of their religious profession, petitioners should transcend the proper bounds, for which, at any rate, they could, and would, be punished under existing laws.  Charo.

 

 

            In J.B.L. Reyes v. Bagatsing, 125 SCRA 553 (1983), the SC found no basis for the denial of permit to the Anti-Bases Coalition to hold a march from Luneta to the street fronting the U.S. Embassy.  It affirmed the general rule that the use of streets is free to all.  It found the fear entertained by city authorities that the rallyists might be agirated by provocateurs to be unfounded, given the report of the NPD that adequate security measures were provided by the police.

 

            The Court did not rule on the validity of the ordinance of Manila prohibiting any rally within 200 meters from any foreign embassy as a means of complying with the Geneva Convention that requires the host country to protect the premises and personnel of the embassy.

 

            Then it gave guidelines for the issuance of permits (now in BP 9801 (i) any group which applies must do so within a sufficient time so the authority can have time to act: (ii) if a disagreement arises over a denial of a permit, the applicant can question the denial in the lower court, which can try questions of fact and law, and (iii) appeal can be made to the SC on an expedited procedure.

 

J.B.L. Reyes v. Bagatsing, 125 SCRA 553 (1983)

 

F:         Retired Justice JBL Reyes, on behalf of the Anti-Bases Coalition, sought a permit from the City of Manila to hold a peaceful march and rally on Oct. 26, 1983 starting 2 p.m. from Luneta to the gates of the US Embassy. He filed this petition because as of Oct. 20, there was yet no action on his request to hold a rally.

 

HELD:  Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. There is to be no previous retraint whether in the form of libel suits, prosecution for damages, or contempt proceedings unless there is a "clear and present danger of a substantive evil that the State has a right to prevent." There can be no legal objection, absent the existence of a clear and present danger of a substantive evil to the holding of a peaceful rally at Luneta. Neither can there be objection to the use of the streets up to gates of the US Embassy. A statute requiring persons to secure a special license to use public streets for a procession is not unconstitutional. The licensing of authorities are strictly limited to the consideration of the time, place and manner and the authorities are not invested with arbitrary discretion to issue or refuse a permit. VV.

 

 

     In Ruiz v. Gordon, 126 SCRA 233 (1983), the SC reiterated its ruling in Reyes v. Bagatsing, and lamented the fact that if only organizers of the Olongapo rally took the effort to find out if the mayor approved the application instead of proceeding with the rally, there would have been more order in the rally.

 

Ruiz v. Gordon  126 SCRA 233 (1983)

 

F:         This is a petition for mandamus to compel the respondent Mayor of Olongapo to issue a permit for the holding of a prayer-rally and a parade through the streets of Olongapo City on Dec. 4, 1983. The petition was filed on Nov. 25, 1983. It alleged that several groups, represented by the petitioner, had filed an application for permit with the Mayor's office on Nov. 21, 1983 without indicating what action the Mayor had taken. It turned out the Mayor actually granted the permit two days before the mandamus suit. 

 

HELD:  The SC dismissed the petition for mandamus after stating that "this action could have been obviated if only petitioner took the trouble of verifying whether or not a permit had been issued."  VV.

 

 

            In German v. Barangan, 135 SCRA 514 (1985), the SC upheld the power of the city authorities to close JP Laurel Street fronting Malacanang from all rallies as a form of "area restriction", in order to protect the President and his family, based on the incident in the early 70s when the gates of the palace were almost stormed.  The rallyists in this case purported to merely worship at St. Jude's.

 

            In case a rally is held in a private place, no permit from the mayor is required.  However, the consent of the owner of the place must be acquired.

 

German v. Barangan  35 SCRA 514 (1985)

 

F:         On Oct. 2, 1984 the petitioners who were businessmen, students and employees, met on JP Laurel Street in Manila for the ostensible purpose of hearing mass at the St. Jude Chapel which adjoins the Malacañang grounds. They wore yellow T-shirts and, with clenched fists, marched on the street and shouted anti-government invectives. They were stopped from proceeding to the chapel by the Presidential Security Command. They brought an action for mandamus.

 

HELD:  The yellow T-shirts worn by some of the marchers, their fists clenched and chants of anti-government investives support the government's claim that the petitioners purpose was not really to worship at the chapel but to hold an anti-government demonstration close to the residence of the President. The restricted use of JP Laurel Street is justified. The need to secure the safety of heads of states cannot be overemphasized. The threat to their lives is constant and felt throughout the world. The petitioners were not restrained in their freedom of religion but only in the manner by which they had attempted to translate the same into action.  VV.

 

 

            In Malabanan v. Ramento, 129 SCRA 359 (1984) and Arreza v. GAUP, 13 SCRA 94 (1985), the SC upheld the right to expression of students who held a rally in a private university.  But since they held it beyond the time granted in a place other than the one allowed by the administration, their suspension was condoned.

 

 

Malabanan v. Ramento, 129 SCRA 359 (1984)

 

F:         Petitioners were officers of the Supreme Student Council of the Gregorio Araneta University Foundation. They were granted a permit to hold a meeting to protest the merger of two units of the university. On the scheduled date, the students continued their meeting beyond the scheduled time and held it in a different place from that indicated in the permit. They expressed in a vehement language their opposition to the merger and as a result, classes and office work was disturbed. Petitioners were placed under preventive suspension. On appeal, they were found guilt of holding an illegal assembly and oral defamation. They were suspended for one academic year. They filed a petition for certiorari in the SC.

 

HELD:  The petititon may be considered moot and academic considering that the TRO issued by the SC allowed the students to enroll. But there is a need to pass squarely on the constitutional question. Respect for the constitutional rights of peaceable assembly and free speech calls for the setting aside of the order of suspension. Suspending them for one year is out of proportion considering that the vigorous presentation of views was expected. The excitement of the occasion, the propensity of speakers to exaggerate and the exuberance of the youth should be taken into consideration.  VV.

 

 

Arreza v. GAUP, 13 SCRA 94 (1985)

 

F:         Petitioners were officers and members of the Student Council of the Gregorio Araneta University Foundation. They were refused enrollment for having led a rally on Sept. 28, 1982.

 

HELD:  As held in Malabanan v. Ramento: "If in the course of such demonstration, with an enthusiastic audience goading them on, utterances, extremely critical, at times even vitriolic, were let loose, that is quite understandable. They would be ineffective if during the rally they speak in the guarded and judicious language of the academe. At any rate, even a sympathetic audience is not disposed to accord full credence to their fiery exhortations. They take into account the excitement of the occasion, the propensity of speakers to exaggerate, the exuberance of youth. xxx" The refusal of the university to enroll the students is a highly disproportionate penalty.  VV.

 

 

            Notes:  Note that while the permit system is not allowed in the case of publication, it is allowed in the case of assembly.  In publication, censorship is presumptively unconstitutional.  There is very little possibility or justification for the regulation of news.  The remedy in this case is prosecution or subsequent punishment.

            But in assembly regulation is allowed because it is needed by the very nature of the expression, when people use streets, they may deprive other groups which want to use the streets too.  So as long as only the incidents of speech are regulated, the measure is constitutionally acceptable.

 

 

Nestle Phils. Inc. v. Sanchez  154 SCRA 541 (1987)

 

F:         While these cases were pending in the SC, the labor unions involved intensified the pickets they had been conducting in front of the Padre Faura gate of the Court and set up picket quarters, at times obstructing access to and egress from the Court's premises. When required to show cause why they should not be held in contempt of court, their lawyer apologized and assured that the above incident would not be repeated.

 

HELD:  The Court will not hesitate in future similar situations to apply the full force of the law and punish for contempt those who attempt to pressure the Court into acting one way or the other in any case pending before it. Grievances must be ventilated in the proper channels, i.e. through appropriate petitions or pleadings in keeping with the respect due the courts as impartial administrators of justice. Moreover, "parties have a constitutional right to have the causes tried fairly in court by an impartial tribunal, uninfluenced by publication or public clamor xxx" The acts of respondents are not only an affront to the dignity of this Court but equally a violation of the above-stated right of the adverse parties and the citizenry at large.  VV.

 

 

                        3.  Freedom of Association and the right to strike in the public sector

 

            Art. III, Sec. 8.  The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

 

 

            Art. IX, B, Sec. 2.  xxx

            (5)  The right to self-organization shall not be denied to government employees.

 

 

            Art. XIII, Sec. 3.  xxx

            It shall guarantee the right of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law.  They shall be entitled to security of tenure, humane conditions of work, and a living wage.  They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

            xxx  

 

 

            The inclusion of the right to unionize in this article is ill-advised because while the right to unionize is an economic and labor right, the right to association in general is a civil- political right.

            Discussed elsewhere is the argument why public employees cannot engage in collective bargaining and strike.

 

 

SSS Employees Assn vs CA, 175 SCRA 686 (1989)

 

F:  SSS filed w/ the RTC-QC a complaint for damages w/ a prayer for a writ of prel inj. against petitioners SSSEA, alleging that the officers and members of the latter staged an illegal strike and barricaded the entrances to the SSS building preventing non-striking employees from reporting to work and SSS members from transacting business w/ SSS.  The Public Sector Labor-Management Council ordered the strikers to return to work but the strikers refused to do so.  The SSSEA went on strike bec. SSS failed to act on the union's demands.

                Petitioners filed a motion to dismiss the complaint for lack of jurisdiction, w/c motion was denied.  The restraining order w/c was previously issued was converted into an injunction after finding the strike illegal.  Petitioners appealed the case to the CA.  The latter held that since the employees of SSS are govt employees, they are not allowed to strike.   

 

HELD:  Employees in the Civil Service may not resort to strikes, walkouts and other temporary work stoppages, like workers in the private sector, in order to pressure the Govt. to accede to their demands.  As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Govt. EEs to Self-Organiza­tion which took effect after the initial dispute arose, the terms and conditions of employment in the Govt, including any political subdivision or instrumentality thereof and govt. owned and con­trolled corporations with original charters, are governed by law and employees therein shall  not strike for the purpose of secur­ing changes thereof.

            The statement of the court in Alliance of Govt Workers v. Minister of Labor and Employment (124 SCRA 1) is relevant as it furnishes the rationale for distinguishing bet. workers in the private sector and govt employees w/ regard to the right to strike?

 

                Since the terms and conditions of govt. employment are fixed by law, govt. workers cannot use the same weapons employed by workers in the private sector to secure concessions from their employers.  The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion of law.  Relations bet. private employers and their employees rest on an essentially voluntary basis.  Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are settled through the process of collective bargaining.  In govt employment, however, it is the legislature and, where properly given delegated power, the administrative heads of govt w/c fix the terms and conditions of employment.  And this is effected through statutes or administrative circulars, rules, and regulations, not through CBA's

 

            EO 180, w/c provides guidelines for the exercise of the right to organize of govt employees, while clinging to the same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not among those fixed by law.

 

            Govt employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are w/in the ambit of legislation or negotiate w/ the appropriate govt agencies for the improvement of those w/ are not fixed by law.  If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor-Management Council for appropriate action.  RAM.

 

 

            E.  Academic Freedom

 

Garcia v. Faculty of Admission, 68 SCRA 277 (1975)

 

F:         The FAC of the  Loyola School of Theology refused to readmit petitioner, Garcia, in its M.A. program because they felt that "her frequent questions and difficulties were not always pertinent and had the effect of slowing down the progress of the class;" that it would be "to the best interest (of the petitioner) to work with a faculty that is more compatible with her orientation. Garcia assailled her expulsion for being unreasonable; that the reasons given therefor were invalid for nowhere did it appear that her conduct constituted a violation of the school's regulations and grave misconduct.

 

ISSUE: Whether or not the FAC can be compelled by mandamus to readmit petitioner.

 

RULING: NO. The Constitution recognizes the enjoyment by institutions of higher learning of the right to academic freedom. The school decides for itself its aims and objectives and how best to attain them. It is free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. It has a wide sphere of autonomy certainly extending to the choice of the students.

            The collective liberty of an organization is by no means the same thing as the freedom of the individual members within it. In considering the problems of academic freedom, one must distinguish between autonomy of the university, as a corporate body, and the freedom of the individual university teacher.

            The personal aspect of the freedom consists of the right of each university teacher to seek and express the truth as he personally sees it, both in his academic work and in his capacity as a private citizen. This status of the individual teacher is as important as the status of the institution to which he belongs and through which he disseminates learning.

            On other hand, the internal conditions for academic freedom in a university are that the academic staff should have de facto control of the following functions: (a) admission and examination of students; (b) curricula for courses of study; (c) appointment and tenure of office of academic staff; and (d) allocation of income among the different categories of expenditure. It is the business of a university to proviide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere  in which the four essential freedoms of a university prevail - to determine for itself who may teach, what may be taught, how it shall be taught, and who may be admitted to study.

            For the above reason, mandamus is  not available for the petitioner. There is no duty on the part of the  School to admit her to study since the School clearly has the discretion to turn down even qualified applicants due to limitations of space, facilities, professors and optimum classroom size and component considerations. There are standards to meet and policies to pursue. What a student possesses is a privilege rather than a right.  Charo.

 

 

UP v. Ayson, 176 SCRA 647 (1989)

 

F:         In 1972, the UP BOR approved the establishment of the UPCB Highshool to serve, among others, "as a laboratory and demonstration school for prospective teachers - provided that UPCBHS must be self-supporting." However, the Dept of Professional Education in Baguio was never organized. So, the BOR decided to phase out UPCBHS for failing to attain the conditions for its creation. The UPCBHS Foundation Inc. sought to restrain the University from phasing out the UPCBHS.

 

ISSUE: Is secondary public education demandable in an institution of higher learning such as the UP?

 

RULING: NO. UP invokes its exercise of academic freedom. Private respondent invokes the right to quality education and to free secondary education.

            The rights invoked by private respondent may be asserted only as against the Government through the DECS.  UP was created under its charter to provide advanced tertiary education. An institute of higher learning cannot be compelled to provide for secondary education.

            It is beyond cavil that UP as an institution of higher learning enjoys academic freedom. UPCBHS was established subject to a number of conditionalities. Failing on such conditions, UP can order its abolition on academic grounds.  Charo.

 

 

UP v. CA, Feb. 9, 1993

 

F:         Former PANAMIN Minister Manuel Elizalde and the Tasaday representative filed a complaint for damages and declaratory  relief against UP Professors Jerome Bailen and Zeus Salazar who disputed the authenticity of the Tasaday find and made a proposition in various conferences attended by them that  Elizalde merely fabricated the discovery of the Tasadays.

                UP intervened, aaserting its duty to protect the respondents as faculty members for acts and utterances made in the exercise of academic freedom. The lower court denied UP's motion to dismiss for failure to state a cause of action. Hence this petition.

 

RULING: With respect to the prayer of the complaint for "judgment declaring the Tasadays to be a distinct ethnic community, the lower court is cautioned that the same is akin to a prayer for a judicial declaration of Philippine citizenship which may not be granted in a petition for declaratory relief. The complaint was filed mainly to vindicate plaintiff's dignity and honor.

            Indeed, it is beyond the province of the court to make pronouncements on matters beyond its ken and expertise. To be sure, in resolving the complaint for damages, the court may find congruence in what is justiciable and what falls within the